Why SCOTUS Should Be Kept At 8 Justices

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Last night president Donald trump announced Neil Gorsuch as his chosen nominee to fill the shoes left by the death of Justice Antonin Scalia. On last night’s radio show, I discussed the jurisprudence of Judge, soon to be Justice, Gorsuch.

As a conservative, I am concerned about the ever increasing power of the Supreme Court. What was originally intended on being the least powerful branch of government, has now turned into a group of unelected philosopher kings whose rulings we all nervously wait for each June to learn how our lives will be changed.

The question for conservatives is how to reduce the power of the Supreme Court? Appearing on fox news for soundbites, writing blog articles, or complaining about the state of affairs on the radio, is not going to result in any reduction of the court’s power.

Some conservatives have ideas of how we might reduce the increasing power of the federal courts. Fellow radio host Mark Levin for example proposes we amend the constitution under article 5 at a constitutional convention called by the states. However, this idea could take decades to implement if ever. Appointing Conservative judges like Gorsuch helps, but is not a long term solution. Justices retire and die.

The power of the Supreme Court would be drastically curtailed by reducing the number of Justice from 9, to only 8. Throughout our history, the Supreme Court has not always had 9 Justices. During George Washington’s administration, the court had 6 Justices. John Adams tried to reduce it to 5 justices. Abraham Lincoln increased the court to 10 Justices. FDR proposed increasing the court’s numbers to 15. The constitution does not specify a requisite number of Justices who must be on the court. Our 9 Justice Court results from the judiciary act of 1868.

Currently, with 9 Justices, the court is guaranteed to issue a definitive ruling on every case coming before it. Keep in mind that the court has complete discretion to determine which cases it hears, which it does for around 200 annually.

If the court had only 8 Justices, it would face the prospect of being hopelessly split. Since this has no legal effect, it would be a result Justices would wish to avoid. This means the court would have an incentive to avoid the most controversial issues that divide the nation. Currently the court has the opposite incentive. This would force the court to not only be more selective in choosing its cases, but also make its rulings more acceptable for the society at large.

The biggest objection I hear to having an 8 Justice supreme court is the potential for the court to deadlock 4/4 and not be able to issue a final decision. But so what? If an issue is so contraversial that 5 out of 8 Justices cannot come to a consensus, they shouldn’t be deciding the issue for 320 million other Americans. So what if different federal circuit courts have ruled differently on a given issue? Is our nation threatened by the 9th circuit ruling one way on a given issue, and the 11th circuit issuing a contrary ruling? The ability to apply different rulings throughout the country is precisely why congress established lower Federal circuit courts. Besides, from our nation’s inception we have always had conflicting bodies of laws dividing our nation. We call them state legislatures.

This is a solution that both (1) incentivizes the court to take less controversial cases, and (2) reduce the likelihood that the court will always issue definitive rulings in cases it hears.

So instead of confirming Justice Gorsuch for 40 years, Senate Republicans should modify the judiciary act of 1868 so the court’s authority is controlled for 150 years.