Thursday, April 14, 2016

Supreme Court history

Some interesting factoids here:

For example, at the beginning of our Republic, only six justices served on the Supreme Court. In the decades that followed, Congress passed various acts to change this number. For many years, there were only seven Supreme Court justices; during the Civil War, there were as many as 10. It wasn't until Congress passed the Judiciary Act of 1869 that the number of justices was fixed at nine.

Consider Justice Robert Jackson's leave of absence to serve in the Nuremberg Trials in 1945. His hiatus left the Supreme Court with only eight justices on the bench for an entire year. But having an even number of justices in no way inhibited the Court's business. As Justice Felix Frankfurter wrote, Jackson's absence did not "sacrific[e] a single interest of importance" because the Supreme Court could simply reschedule any cases that resulted in split decisions.

When tie votes occur today, the Supreme Court has the same ability to reargue cases at a later date or simply let the opinion of the lower court stand. But rarely is either option necessary because ties are so uncommon.  That's because the vast majority of the Court's decisions are either unanimous or split along non-ideological lines. This holds true even for some of the most high-profile, controversial cases. For example, after Justice Elena Kagan recused herself from Fisher v. University of Texas—a 2013 affirmative action case with far-reaching implications for college admissions—the Supreme Court still reached a near-unanimous decision with only eight justices.

While Democrats would have us believe that an even number of justices hamstrings the Court and results in myriad split decisions, the statistics paint a different picture. Since I was first elected to the Senate nearly four decades ago, the Supreme Court has heard more than 500 cases with only eight justices—either due to recusal or vacancy. Less than seven percent of these cases resulted in a tie.

The current Court vacancy is unlikely to last longer than a year. Yet throughout history, numerous vacancies have stretched for longer periods of time. For example, the seat vacated by Justice Abe Fortas in 1969 remained empty for nearly 400 days, and numerous vacancies in the 1800s sat open for more than two years. It is worth noting that in none of these cases was the Court unable to function without a full contingent of justices.

I think six is a pretty good number. I loathe 5-4 Supreme Court decisions decided by a single swing voter. I think that if you can't convince a few people from the other side of the aisle to see your perspective, the decision doesn't deserve the weight of precedent. A 4-2 vote on a six-person court has legitimacy in a way that a 5-4 decision on a nine-person court does not.


If I esteem mankind to be in error, shall I bear them down? No. I will lift them up, and in their own way too, if I cannot persuade them my way is better; and I will not seek to compel any man to believe as I do, only by the force of reasoning, for truth will cut its own way.

I could not love thee, dear, so much,
Loved I not Honor more.

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