On Empirical SCOTUS, Adam Feldman examines the data for SCOTUS performance when a number other than nine has been the counting of the justices. His conclusion?
There is a lot of data to digest from this post. What are the key takeaways?
- There have been thousands of cases where other than nine justices voted and the Court still was able to come to decisions on the merits.
- These cases were heard during years where the Court’s size was set to nine-members as well as when the Court was structured with other numbers of justices (these Courts have been composed of ten to one justice(s)).
- A relatively small portion of the cases with decisions from other than nine justices ended in equally divided Courts.
- The percentage of cases decided by equally divided Courts increased significantly in the 20th century although it has diminished in the last several Court eras.
Basically there appears to be nothing inherently wrong with the notion of a Court of a different size than nine. It should continue to function as Courts with an even number of members have historically come to decisions as well. Importantly though, when the number of justices on the Court has been set to any number other than nine, this decision was made by Congress through legislation. The hold out on hearings for the Supreme Court nominee, Merrick Garland, is unprecedented and there are political processes in place that could achieve the same outcome of an eight-member Court. Thus there are data to back up the proposition that the Court will not fail with other than nine-members. There are more politically credible ways to achieve alternative Courts sizes though than merely suppressing the Senate vote.
In his earlier essay, he describes how a polarized court with an odd number of justices can leave decision-making in the hands of one man:
In fact, it is Justice Kennedy’s vote that has often dictated whether the conservative or liberal position wins out in close cases. This places the power to define the direction of Supreme Court precedent in Justice Kennedy’s hands, especially in some of the most significant and contentious cases.
The problem that the Court faces with nine Justices is similar to the problem it faces with eight Justices, although the effects are different. When Justice Scalia was still a member of the Court, four Justices tended to vote in the liberal direction (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and four tended to vote in the conservative direction (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). This created a vacuum of power for the swing Justice, Justice Kennedy, to usurp, causing his vote to often be decisive.
Justice Kennedy’s ability to shape the Court’s opinions is further accentuated by the number of majority opinions he wrote in 5-4 cases compared to all other Justices during this period. Majority opinion assignment in close cases can be offered in exchange for a vote in a certain direction.
