Meme For Only Eight Justices Builds

Swing state Republican Senators are expected to be under great pressure in the upcoming election and one of the prime issues Democrats hope to use against them is the unwillingness of Senate Republicans to even consider replacing the recently deceased Antonin Scalia on the Supreme Court.  Now, it looks like we can see the Republican counter-argument taking place – that the country works just fine with only eight justices.  It all started with an op-ed piece by Barry MacDonald, a law professor at Pepperdine Law School just last week. And today, we have an article in Huffington Post of all places giving more credence to this point of view and adding the voice of “self described liberal” Eric Segall of Georgia State University College of Law. Segall’s rationale for only eight justices is that the usual deciding vote in these contentious 5-4 decisions by the Court usually comes from Anthony Kennedy and he then asks the question, “[d]o you want to live in Justice Kennedy’s America?”. Apparently, Mr. Segall would prefer not. Of course, if a more liberal justice does end up replacing Scalia, Justice Kennedy would probably no longer be the swing vote as the liberal bloc would have five members, but Mr. Segall carefully elides that fact. Mr. Segall then goes on to posit that only having eight members will force the Court to come up with reasonable compromises that can be crafted into majority decisions. Thankfully, the article goes on to debunk this specific idea, pointing out that, in recent contentious cases, the court has essentially split 4-4 or just punted on the case entirely, leaving the law to be interpreted differently in certain Appeals Court Districts. And, as Ms. Wydra of the Constitutional Accountability Center so forcefully puts it, “[w]e expect our court to be able to provide answers to questions of exceptional national importance that come before it.”  We certainly do not expect the law to be applied differently from one part of the country to another.

Yes, there is no constitutional requirement that the Supreme Court have nine justices but it has been that way since 1869. And it only makes sense that you have an odd number so that decisions can actually be made – it’s like that in virtually every other court in our country. As with Mr. Macdonald, I do not know Mr. Segall but have no reason to doubt the sincerity of his views.  But you really have to wonder about the timing of this meme. Liberals, like me, lived with the disastrous results of Bush v. Gore, Citizens United, Hobby Lobby, and many others. We didn’t like it but we accepted it and worked hard to change it. And now, when it finally looks like that opportunity is ours, it seems that Republicans, the usual champions of tradition and continuity, want to change the rules of the game.