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Is an Eight-Member Court Good for the Nation?

The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.

Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a  Supreme Court with an equal number of justices is a bad development for the nation.  A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.

Greater efforts at compromise would be a hallmark of 4-4 court with such divides.  Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible.   Of course, compromise is not always possible. But it is not even clear that more failures to render a binding precedent would be bad for the nation.

Such decision would typically have two kinds of results. In the most common kind of Supreme case—a case to resolve circuit court splits—it would leave disagreement among the circuits. To be sure, the tie vote would prevent the creation of a national rule, but in the case of a tie, there is often something to be said for both views below.  Additional experience and arguments may help for a better resolution in the future.

Another kind of case that a 4-4 tie would affect is the overruling of Supreme Court precedent. But it is not at all clear as an institutional matter that it is wise to overrule precedents on a 5-4 vote. The closeness of the vote suggests that the precedent is not obviously to be discarded.

Finally, a 4-4 court prevents the possibility that a single swing justice will become the Court’s key decision maker. This kind of power is neither beneficial for the nation nor for the soul of that justice.

Now perhaps these arguments are not good enough to make the case for establishing a Supreme Court with an equal number of justices, although we had such a Court in the early republic.  But they should make us more sanguine about periods in which vacancies create a Court with equal numbers.

Reader Discussion

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on March 30, 2016 at 10:59:31 am

Your optimism is *refreshing*

Of course, it would also mean that the idiocies coming out of the 9th circuit would also stand as in the teachers union forced dues case.

Perhaps, the Little Sisters case was unique and the Catholic ladies on the court felt some stirring of a long dormant sympathy for their similarly begowned (Black Robed) "sisters" who having educated them were perhaps due some deference.

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gabe
on March 30, 2016 at 20:57:52 pm

Like a deadlocked congress, a deadlocked supreme court is nothing short of a boon to Liberty.Have no idea what all the hand-wringing is all about.

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Jim Delaney
on March 31, 2016 at 00:55:01 am

The first Court had an even number, no?
Reducing it by one was part of the "midnight judges" gambit, if memory serves.
That, of course, gave us Chief Justice Marshall, and the idea of a single opinion for the Court.

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Richard S
on March 31, 2016 at 15:03:06 pm

Wasn't the original Court really more of a group of circuit riders rather than an actual court that met and heard cases together? That would have included the time of the "midnight judges." It wasn't until later that the Court met together as a formal court. The even number of justices at the time would not have mattered.

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Scott Amorian
on March 31, 2016 at 15:32:41 pm

The greatest benefit of a 4-4 split is that rulings, errant or otherwise, aren't uniformly applied throughout the union. I'd say that was an especially good reasons not to lament a 4-4- split.

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Jim Delaney
on March 31, 2016 at 20:20:44 pm

True - except of course if a Circuit such as the Ninth issues a rather egregious ruling (unheard of, you say - Ha!) then we are stuck with it.

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gabe
on March 31, 2016 at 20:27:57 pm

Only if you live in those states within the court's jurisdiction will you be affected. And if the ruling is egregious and/or oppressive, unconstitutional, then we should organize in order to persuade our State legislators to nullify the damnable ruling. The Constitution and our unalienable rights cannot protect themselves. That's entirely up to us. Not a quick fix I know, but the only other choice is submission.

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Jim Delaney

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.