Why Not Go With Eight Members on the Supreme Court?

I had the huge privilege of attending the Central District Judicial Conference annual meeting in Ojai last weekend.  I took a bunch of notes and have some interesting stuff to write about.  I will put it all into a couple of blog posts over the next few days.

The first program was called “Panel Discussion: Top Supreme Court Cases to Watch” featuring Deanell Tacha, Duane and Kelly Roberts Dean and Professor of Law at Pepperdine Law School, and Professors Robert J. Pushaw and Barry P. McDonald – all three obvious constitutional pros with the ability to talk constitutional law talk in plain English.  The cases they discussed will be a separate blog.  

But someone asked about the ongoing political mess with filing the vacant seat on the Supreme Court.  Each of the three were obviously distressed at what appears to be an impasse that will likely continue until the upcoming presidential election.  Prof. McDonald pointed out though that there have been various times when the Supreme Court was, by law, made up of an even number of judges.  For example, in the 1800s for a time the court, by Congressional fiat, was six justices and for a time eight justices.  His comment was that an even number of judges might force the judges to actually work out some of their doctrinal positions to reach a conclusion.  As it is now, or at least it was with Scalia, the “liberal” side or the “conservative” side has no reason to change their fundamental beliefs because there is always someone, usually Kennedy, who will bend enough to permit the court to reach some result.  As the court would not want an endless stream of 4-4 decisions, they might figure out how to work together a little better.  That actually might happen over the next few months.  Someone might bend enough to get some result in some of the important upcoming cases rather than doing all this work for nothing.

There was also a question of why doesn’t the court have a system as apparently some circuits have of putting a temporary judge on the court for the time being during the delay in filling the vacant seat.  Apparently some circuit adds a district court judge to a panel going through the district court judges alphabetically.  Or – my idea – bring back Sandra Day O’Connor as a pro tem.  She was appointed by a Republican.  But alas, Congress would have to do something that makes sense and we know that ain’t gonna happen.

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