Supreme Court Showdown: Can We Make Do With 8 Justices?

Editor's note: An earlier version of this article ran at the beginning of the year. We've updated it in light of President Trump's announcement of a nominee for the Supreme Court.

Even before President Trump announced Judge Neil Gorsuch as his nominee for the ninth seat on the Supreme Court, Democrats threatened to block any appointment he made. Republicans, of course, are furious — just as Democrats were when Republicans followed through on the same threat a year ago — and have lashed out at the suggestion of an indefinite delay.

“I think that’s something the American people simply will not tolerate, and we’ll be looking forward to receiving a Supreme Court nomination and moving forward on it,” Senate Majority Leader Mitch McConnell told the press in early January.

When Democrats held the White House, they insisted on the importance of having nine justices; Republicans will now make similar arguments.

But forget the politics, the partisanship and the charges of hypocrisy for a moment and consider: Is it really so bad having an even number of justices?

The case for eight

For the first few decades of the country's existence, the court had six justices. Its number fluctuated some in the 19th century, at times even and at times odd, until 1869 when Congress decided on nine.

Most people assume, and law scholars tend to agree, that having nine Supreme Court justices, or at least an odd number, is best for a well-functioning government.

Eric Segall, law professor at Georgia State University, strongly disagrees, as did the Founding Fathers. He points out, first of all, that the country is doing OK right now with just eight justices.

"We’ve gone a year, and the sky hasn’t fallen," he said. It may be true that the Court is proceeding at a slow pace, but Segall doesn't see that as a downside. (Segall, a vocal progressive liberal, will surely be seen as an opportunist for making this argument; however, he made the same case prior to Trump's election, when Hillary Clinton was widely expected to win.)

The biggest concern with an eight-person Court, however, is the potential for deadlocked 4-4 decisions. Without the deciding ninth vote, the Court may be unable to come to a conclusion on critical issues.

But Segall pointed out that 80 percent of the Court's decisions are not 5-4. And when cases do result in a 5-4 decision, it's typically on a controversial issue like abortion, affirmative action or gun control. If the court splits 4-4 on these issues, however, it's not a disaster — the lower court's ruling would simply be upheld within its own jurisdiction.

What about cases that need a nationwide decision, that won't tolerate different states having disparate outcomes?

"It’s very rare that we need a national rule," Segall said. And when we really do need one, he argued, the Court will find a way to resolve its differences and preserve order in the country.

Segall sees the possibility of split-decision-induced chaos as minimal and hypothetical, whereas the persistence of precedent set on 5-4 decisions, where the constitutionality of the matter is likely open to reasonable challenge, is a regrettable fact of the status quo. For him, it would be better if the court made fewer contentious rulings, left more decisions up to the state courts and to legislators, and stayed farther from the partisan fray.

What Republicans will do now

Senate Republicans, facing an obstructionist minority party, may come to wish they had heeded President Obama's warning when he chided their plans to deny Garland a vote:

I simply ask Republicans in the Senate to give [Garland] a fair hearing, and then an up or down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any President, Democrat or Republican, to carry out their constitutional function. The reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well.

Sen. Jeff Merkley's recent public statements pledging to block any Trump nominee are evidence that the endless tit-for-tat may indeed be in motion.

With the Senate split 48-52 in favor of Republicans, the president's party members will need some Democrats to join them to confirm Gorsuch under current filibuster rules, since Senate Majority Leader Mitch McConnell is hesitant about the so-called "nuclear option" — abolishing the filibuster that requires 60 votes to appoint a Justice.

But perhaps Republicans will only see the upside. Maybe a nasty enough fight will convince McConnell to drop his reservations. Changing the Senate rules regarding the filibuster only takes a majority vote.

Needing 60 votes for a Supreme Court nominee may soon be a worry of the past.

But Segall argues that it would be in the Republicans' interests to preserve the filibuster. If all the current justices live through Trump's first term, and Democrats win the White House and the Senate in 2020, it may be up to a President Warren or President Booker to reshape the court for generations to come. Without the filibuster, Democrats might have the freedom to appoint progressive diehards.

With an eight-justice court, the Senate could adopt a rule requiring four Democratic seats and four Republican seats; the Federal Election Commission has a similar system. This would serve to reduce partisan fights over the Court — a useful salve in a time of high tensions in Washington.

Segall also points out that keeping an even number of justices preserves an ostensibly conservative principle: limited Court power.

"People have been trying to limit the power of the court for years, and it doesn’t work," Segall said. "Only structural changes work."

Lead photo credit: Phil Roeder