The Two Justice Solution

In all the fervent speculation about what President Obama intends to do in the aftermath of U.S. Supreme Court Justice Antonin Scalia’s death this past weekend, a common assumption is that Obama has—at most—one vacancy on the Court to fill.  I believe there is a way to avoid the gargantuan partisan political mess that Justice Scalia’s death is about to unleash in the United States, however, and that is for President Obama and the Senate Republicans to come to an agreement that Obama will appoint one Supreme Court Justice of his own choice and yet another of the Senate Republicans’ choice.  This is what one might call ‘The Two Justice Solution.’  As a result, the Supreme Court would rise to 10 Justices in strength.

I’ll return to the politics of this proposal towards the end of this post, but let me first start with its legality/constitutionality.  As every first-year Civil Procedure student learns, Article III of the U.S. Constitution is remarkably imprecise, stating simply that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”  In short, while we know there is supposed to be a single Supreme Court, we don’t know much about this Court’s composition—including whether it is supposed to have more than a single member—from the Constitution.

There is a great deal of convention that has built up around the ‘9 number’ with respect to the Supreme Court.  Yet, historically speaking, this number only stabilized post-1869; before then the Supreme Court consisted of anywhere between 5 and 10 members.  Moreover, as Andy Hessick (UNC) and Sam Jordan (SLU) show in their 2009 article, “Setting the Size of the Supreme Court,” there has not been much contemporary theorizing of whether the number 9 continues to make sense.  There are cogent reasons to consider reducing that number and also to enlarge it.  Indeed, in her 2006 article, “Representative Government, Representative Court? The Supreme Court as a Representative Body,” Angela Onwuachi-Willig (Iowa) suggests a Supreme Court consisting of as many as 15 Justices!

As to the legal practicalities of how to go about actually increasing the size of the Court, one place to start is with re-legislating 28 U.S.C. § 1’s declaration that “[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”  Focusing on this Congressionally-drafted provision, then, it appears that not only would the President and the Senate majority have to be in concurrence with enlarging the Court, but so would the House majority.  Yet as the engrossing 2006 thought-piece “’Nine, of Course’:  A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court” by Peter Nicolas (University of Washington) argues, Congressional statutes on Supreme Court size are probably just mere exhortations.  In other words, Nicolas suggests that provisions like 28 U.S.C. § 1 can be easily (and constitutionally) disregarded by a President and Senate majority willing to forcefully exercise their (respective) appoint and advice powers.

As to the politics of all this, I am certainly sympathetic to claims that President Obama should be able to fully exercise his constitutional appointment powers up until his last day in office—or, at the very least, up until election day in November 2016.  And to be sure, Justice Scalia had plenty of earlier opportunities to ‘safely’ step down during a Republican presidency, and it’s not particularly fair to expect the rest of us to put our lives on hold because an old man—lets be real here—didn’t believe that life expectancy statistics applied to him too.  That being said, from a Democratic perspective as well, I would imagine that there is good reason to urge President Obama to abstain here.  In particular, I imagine that supporters of Bernie Sanders expect that a President Sanders would appoint a far different kind of person to the U.S. Supreme Court than President Obama would.  And especially with so many younger voters supporting Sanders, it’s not clear why their vision for this country—including its Supreme Court—should not be considered important here.  This is all to say then that I’m not convinced that ‘the arguments’ for each side really support an all-or-nothing framing here.  Perhaps then ‘each side’ should get a little something of what they want at this truly momentous time.

Moreover, there is something to be said for disrupting the current voting blocs on the Supreme Court.  I’m sure people will point to statistics that demonstrate that, on the vast majority of issues, the Supreme Court has not been split into 4-4 liberal/conservative camps, with Justice Kennedy being the swing vote.  Yet there is a very common perception out there that this has been the situation on the Supreme Court, which does little for the Court’s long-term legitimacy.  Perhaps one way to break this stony fragmentation up, then, is to appoint an even number of Supreme Court Justices—whether that be 10, 8, or 12—thereby requiring a Court majority to consist of something more than 5-4.

Comments

[Anon]

So when a conservative justice passes away unexpectedly, we have to bend over backwards to create a creative solution to ensure the GOP Senate will agree with it? What happens when a liberal justice passes? I assume we just replace that person in the normal manner (President appoints new nominee, Senate does job). As such, I am not sure why there should be two tests. Rehaps you could clarify?

[Howard Wasserman]

While I agree there is nothing inexorable about 9, wouldn't this proposal put us where we are now--an evenly politically divided, even-numbered court, certain to produce many affirmances by an evenly divided court. I do not see the difference between a 4-4 and 5-5 court.

[Howard Katz]

I would propose another solution. IF, and only if, the Senate refuses to act on an Obama nominee, I would suggest that Obama nominate a former Supreme Court justice, who would make a solemn pledge to resign when the new president is in a position to fill the seat. Of course the solemn pledge is probably not enforceable, but given the public nature of this manuever, I would think the pledge would be honored. The choices are Souter, Stevens, and O'Connor, all of whom were named to the Court by Republican presidents. Though to varying degrees the mainstream of the current Republican party has been unhappy with all three, it is certainly hard to argue that they are not extremely qualified to serve. At least one of them is likely to be willing to serve, and as least one of them would still be on the Court but for extenuating circumstances (and she is not predictably ideological in a way that would justify immediate political opposition). Does adding a justice for only a year or two undermine the legitimacy of the decisions that would be made? Perhaps, but if the initial Obama nominee fails to gain approval, would it be better or worse than having 4-4 affirmances of various circuits?

[Common Sense]

I have another simple solution. Obama should appoint someone, and the Senate should confirm that person often they are found to be qualified, and if not Obama should get a second chance to appoint someone else, and the Senate should confirm that person.

This is how it generally works. Only in the bizarro world the Republicans have created (and the press has enabled) is it even a question how this should work. Obama was elected twice, and handily, the people have spoken. Sure, they will speak again some day, but for now and the next year Obama is the one and only President.

[Jeff Redding]

Howard Wasserman: Thanks for weighing in. I think an expanded court would allow a wider variety of viewpoints to be represented on the Court. Certainly, leaving the court at the current 8 Justices would leave it in the hands of the current centrist/conservatives (Thomas being the only odd duck on this spectrum). It would also mean no (out) gays, Protestants, Muslims, poor people, foreigners, Puerto Ricans, and a multitude of other unrepresented groups. This kind of point is the essential thrust of Angela Onwuachi-Willig's article (cited above).

Howard Katz: Thanks also for writing and, yes, an interesting idea. To echo your point though, I too would be worried about how seriously people would take the precedents established during this temporary situation.

[Steve L.]

The solemn pledge to re-retire would not need to be enforceable if it is a recess appointment. It would simply expire at the end of the next session.

If the Senate were willing to go along, it would take only a majority to recess -- and there could not be a filibuster (I think).

[Barry]

Jeff, perhaps you could help us by linking to the mant, many times that you've made such arguments denying the legitimacy of President Bush, because that is your position above.