May 26, 2016 — An op-ed by Professor Barry P. McDonald entitled “Eight Justices Are Enough” appears in today’s The New York Times. He argues that the heightened potential for the current, eight-Justice Supreme Court to deadlock shifts the burden for law-making back to the legislature as the Founders intended.
From “Eight Justices Are Enough”:
Malibu, Calif. — LAST week the Supreme Court took an unusual step: It declined to issue a ruling in a case, Zubik v. Burwell, and instead unanimously ordered the lower courts to consider a compromise that the justices themselves suggested. The case, which concerned access to contraceptive coverage under the Affordable Care Act, raised a controversial issue about religious freedom. But by proposing a practical solution that might be amenable to all parties involved, the court avoided addressing that issue.
Purportedly, the justices took this action to avoid having to split 4-to-4 in the case. With the Senate refusing to consider President Obama’s nominee to replace Justice Antonin Scalia, the current eight-justice court finds itself increasingly vulnerable to such deadlocks, unable to make definitive 5-to-4 rulings. According to many observers, this arrangement is damaging the court and the country.
But it is not causing any real harm. Indeed, there is reason to think the opposite is true….
…. If Zubik v. Burwell is any indication, an evenly divided court may prompt the justices to reach practical compromises that assist real-life litigants, instead of making bold, sweeping and highly debatable proclamations about the meaning of the Constitution. Being a dispute resolver rather than a Constitution oracle surely fits better into the intended — and democratic — constitutional scheme.
Obviously, a political logjam in the Senate is not the way to bring about meaningful reform of the Supreme Court. But that logjam exists precisely because the court has become such a political actor. The current eight-member court does not represent a permanent fix, but perhaps it should not overly trouble us either.
Read the full article on the New York Times website.
UPDATE 6/1/2016: Professor McDonald’s article has attracted attention across multiple media outlets (h/t Paul Caron):
—Tom Inkel, Pepperdine Law