Eight Justices are Enough: A Proposal to Improve the United States Supreme Court

Abstract

Ever since Justice Scalia passed away last February, the Supreme Court has been composed of eight Justices equally divided among Republicans and Democrats. This paper argues that Congress should permanently set the number of Justices at eight and require that at all times there are four Republicans and four Democrats on the Court. A permanent, evenly-divided Court will work harder to reach narrower decisions in its hardest cases and will be less able to impose its ideological agendas on the American people while at the same still have the tools necessary to maintain the supremacy and uniformity of federal law. To the extent the Justices do deadlock on a case, the issues will be resolved by court of appeals judges who are much more politically, educationally, and geographically diverse than the Justices.This proposal to limit the Court's power, unlike abolishing term limits or requiring a super-majority of Justices to strike down laws, does not require a constitutional amendment (the original number of Justices was six). Although the President could nominate any person he desires, even if it disrupts the Court's balance, the Senate could refuse to confirm any nominee who would lead to one of the political parties having a majority of Justices on the Court. This paper spells out the details of this proposal and explains both how it could be easily implemented and why it benefits both political parties, the Congress, the President, and the American people.Preexisting intellectual commitments or interpretative theories have not and cannot limit the Court's power. It is well past time to experiment with structural changes that will make it more difficult for the Justices to strike down state and federal laws based on ideological disagreement instead of a demonstration of clear inconsistency with the Constitution.