This week Ted Cruz said “There is certainly long historical precedent for a Supreme Court with fewer justices” in not filling the vacant SCOTUS seat. No, not really. The Judiciary Act of 1869 set the court at 9 justices and it has been this way ever since. Yes, FDR attempted to pack the court during his time, but it never happened.
But this has certainly created some buzz among the Right. Michael Stokes Paulsen went even further, suggesting that Congress reduce the number to back to the original six established in the Judiciary Act of 1789. This would be accomplished through retirements and/or deaths and refusing to appoint replacements. One of his chief reasons is that altering the Constitution would need two-thirds support (4 of 6 justices).
While this second suggestion is interesting, it will never happen. If the GOP wins the White House and controls Congress, they will put their ideological soul mate on the court to have a 5-4 majority. In any other scenario, a Democratic Senate or President would block this.
The reason why not is so simple: in modern times we view politics as a competitive parlor game, not a difference of ideological opinions. Neither side wants the best justice, but the best one for their positions. And where it used to be that a president from one party, with a Senate controlled by the other, would offer a moderate justice, now the GOP has set the precedent of not filling the seat with even a moderate justice.
Senator John McCain, even before Cruz’s suggestion, had stated that the seat would go unfilled as long as Clinton (should she win) be President.
In other words, this is all about the game – and not about the Constitution nor the American People. So, instead of playing Match.com: The SCOTUS Edition, let’s just admit that this is a game and play it that way.
Congress should set SCOTUS at 8 justices, and moving forward, should fill the court with 4 GOP appointed justices and 4 Democrat appointed justices. The purpose of 9 was to avoid a tie. But again, this makes it all about the game.
If the court were set at two 4-person ideological teams, then it would take shifting one justice from the other team over to your side. And that won’t be easy. That would be the point. The Right feels that a Clinton pick would put 5 “activist” judges on the court. The Left worries that a Conservative pick would roll back minority rights or pave the way for bigger Corporate gains.
An even 4-4 split means that the court would truly need to rule in favor or against by converting at least one on the other side. There are many 5-4 rulings, but there are also many where justices side in larger majorities. If you can’t swing one on the other side, then there is no change to the law. This lends from the Paulsen idea from above where a change to the Constitution be challenging.
Could there be an added bonus? Might this also stem the anger of Americans when 5-4 votes are controversial, such as Citizens United and Same Sex Marriage? This wouldn’t be a majority of one-sided court ideologues, but instead four plus a conversion of at least one from the opposing view.
The danger here, of course, is in each side picking extremists for the court. Four far right and four far left would make it hard for one to side to sway the other. But if it is truly about the Constitution, judges can be funny creatures. Earl Warren wasn’t supposed to be liberal. There are other examples like this, albeit none in modern time. This could be stemmed by an approval process in the Senate that requires an approval of at least a quarter of the opposing party. Which, of course, is meaningless in a heated partisan divide like we have now.
What remains clear, regardless, is the American people want hearings on Supreme Court nominee and want the seat filled.