No Need To Consider Judge Garland

Merrick Garland

This article comes from Western

Is it really unworkable?

by Dr. John A Sparks

With the death of Justice Antonin Scalia the Supreme Court is left with one chief justice and seven associate justices. President Obama has nominated Merrick B. Garland, chief judge of the D.C. Circuit Court of Appeals, who was a Clinton appointee and clerked under liberal Supreme Court Justice William Brennan. Even before the nomination, the vacancy produced urgent calls for a replacement to be nominated based on claims that an eight-person court would not be “fully functioning,” would “hamstring the judiciary,” and would amount to “partisan understaffing.” With Obama’s nomination of Garland, the clamor for immediate action will increase.

But is an eight-person Supreme Court really unworkable for the period between now and early 2017 when a newly-elected president will offer a replacement?

First, some history. Article III of the Constitution says that judicial power shall be vested in one Supreme Court and such other inferior courts as Congress shall ordain. It always came as a surprise to my Constitutional students that the size of the Supreme Court is not set at nine by the Constitution. In fact, the first Court was six-members —the chief justice and five associate justices. Between then and 1869, the Court was sometimes seven, sometimes 10, and sometimes nine. But the Judiciary Act of 1869 finally fixed the number at nine—one chief and eight associates. It has not changed since, with the best-known attempt at increasing its size being FDR’s unsuccessful “court packing” scheme in 1937.

The immediate question is: Can the Supreme Court effectively operate with only eight judges? Yes, it can. Even with nine members, it does so when a justice recuses himself or herself because of an actual or potential conflict of interest, thus taking the number to eight. That has happened as recently as the Fisher v. University of Texas case where Justice Kagan did not participate because she had worked on one side of the case as solicitor general. In fact, in her first term beginning in 2010, she recused herself from 28 cases out of the 75 decided opinions. The court operated in over one third of its cases with just eight justices during that entire term.

However, what about those close and controversial 5-4 decisions of which Justice Scalia was a part? Isn’t it likely that the court will be essentially deadlocked on some important constitutional issues? Yes, that is a possibility but not as likely as one might think.

The court’s statistics here are enlightening. For the term for which we have the most recent data, the October 2014 term that ended June 2015, the Supreme Court issued 74 opinions on the merits of which only 19 were 5-4 opinions (26 percent). Of those, 13 can be said to have been generated by ideological splits between the conservative and the liberal wings of the court. Moreover, this particular term was reasonably contentious, containing the Obergefell case (same-sex unions), King v. Burwell (tax credits under Obamacare), and Michigan v. EPA (costs to businesses of regulation). Taking a look back over the decade of the Chief Justice John Roberts’ court, a similar pattern emerges. For the 10 years starting in the 2005 term, the percentage of total opinions that were 5-4 averaged 22 percent or 17 decisions. The point is that much of what the court decides is not dependent upon nine justices. Because most of the decisions are not close, eight justices will do the job.

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