AMERICA’S Supreme Court has not always had an odd number of justices. For
its first 18 years, the high court’s bench was set at just six seats and it saw
a brief stint with ten members during the civil war. But since 1869, Congress
has determined that the number of justices should stand at a tie-defying nine.
Partisan rancour over the Supreme Court has coloured confirmation hearings in
recent decades, but only one nominee since the Eisenhower administration has
waited longer than 100 days for a Senate vote, and since 1789 an average of
just 25 days have elapsed from the date of the nomination to Senate
confirmation or rejection (or, in about a dozen instances, the administration’s
decision to withdraw the name). The current wait for a new judge is
unprecedented in recent times, and bad for both the court and America—why?
Some 83 days have already passed since Barack Obama tapped Merrick Garland
to fill the Supreme Court vacancy opened by the death of Antonin Scalia, and it
appears that number is likely to grow to 300 or more before a ninth justice
takes his or her seat. In 2010, Mr Garland, currently chief judge of the
appeals court for the District of Columbia circuit, was hailed by Republican
Orrin Hatch as a “consensus nominee” who would have no trouble being confirmed
for a seat on the Supreme Court. But there now appears to be an unshakable
consensus among GOP senators that he will not be America’s 113th justice. Chuck
Grassley, chair of the judiciary committee, pledges to take no action on any
Supreme Court nomination until America’s next president takes office. While the
GOP stands guard over the fortress it has erected around Mr Scalia’s empty
seat, the eight justices Mr Garland hopes to join are struggling to finish a
term dotted with vexed and closely divided cases.
Some legal scholars celebrate the temporarily attenuated bench, hailing the
impossibility of 5-4 rulings as a climate favourable to compromise. The
justices themselves seem divided on it. Justice Ruth Bader Ginsburg said that
“eight, as you know, is not a good number for a multi-member court”. A tie
“means no opinions and no precedential value”, with lower-court rulings staying
just where they are. Justice Elena Kagan has praised the chief justice, John
Roberts, for his “words and deeds” in service of building consensus, though she
too notes “there is a reason why courts do not typically have an even number of
members”. Justice Stephen Breyer, observing that “we’re unanimous 50% of the
time," downplays the trouble with an eight-member bench. “Twenty percent
of the time, we’re 5-4 and half of those” do not concern hot-button political
questions, he said.
But in the weeks remaining before the justices’
summer holiday, rulings are pending on a troika of potent controversies:
abortion access, affirmative action in higher education and the legality of Mr
Obama’s immigration policy. In the oral arguments in these three cases, two of
which were held after Mr Scalia’s death, the justices seemed split down the
middle. Faced with the prospect of a 4-4 vote, the court has two options. It
can go ahead with a tie, as it has in cases involving marital discrimination in
bank rules and the future of public-sector unions. Or it can forge a broad
consensus on an extremely narrow decision, as it did last month in response to
a complaint from faith-based non-profit groups that Obamacare did not
sufficiently accommodate their religious objections to contraception. In that
case, Zubik v Burwell, all eight justices washed their
hands of the conflict—at least for a year or two—by asking the parties to forge
a compromise and ordering the lower courts to give their squabble another look.
A similar strategy of avoidance seems to be fuelling the justices’ reticence to
accept contentious new cases onto its docket for the autumn. Whether it fails
to reach consensus, agrees to disagree or refuses to even give a case a
hearing, it is hard to see the Supreme Court as living up to its name as a
final arbiter of America’s deepest legal conflicts.
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