How Many Supremes Do We Need?

The makeup of the United States Supreme Court took center stage in American political life with the sudden death of Associate Justice Antonin Scalia. Although much more nuanced in his judicial philosophy (and even more so in statutory construction) than his critics or fans generally acknowledged, Scalia's originalism was clearly a bulwark against the expansive role for themselves that others on the Court (four or five, depending on the case) fancy. President Obama's nomination of Merrick Garland thus threatened to undo the precarious and shifting balance among the nine members of the Court.

Among Donald Trump's more cultured supporters, hoping to preserve the legacy of Justice Scalia may be the most oft-cited reason for voting for the Republican nominee. Others are less confident (here and here) of The Donald's reliability on the judicial nomination front. I must admit I'm dubious but for the sake of argument, let's consider another scenario: a pledge to nominate no one to fill the Court's vacancy

As reported in The Economist here, over the most recent three-quarters of a century, the Supreme Court has been doing less and less: "Seventy years ago, the justices decided 200 or more cases a year; that number declined to about 150 in the 1980s and then plummeted into the 80s and, in recent years, the 70s." Why, then, do we need nine justices?

The obvious answer is to break ties but that's hardly an overwhelming reason. After all, a 4-4 vote means that the decision of the lower court will stand but the Supremes' indecision carries no precedential value. It's not immediately clear that ties will increase systemic error. If so, probably not by much.

Given that the next justice to retire from the Court will probably be from its more activist wing, the current imbalance may persist for only a few years. If, for example, Justice Ginsberg leaves the Court, the ratio will be the same as before Justice Scalia's death: three to three with Justice Kennedy holding the swing vote. The upside is that the expense of maintaining nine justices will be reduced to paying only seven. Not much savings in an age of multi-billion dollar annual deficits but certainly enough to make permanent a few current temporary bankruptcy judgeships.

At that point whoever is president will have the opportunity to nominate two justices. In order to gain the Senate's consent, a well-advised president would nominate one originalist and one activist. Why would a president forego the opportunity to have a Supreme Court two-fer? Because to go for two of the same philosophy wouldn't gain Senate confirmation. After all, in the worst-case Republican scenario, even after November they will have enough members in the Senate tie up matters unless President Clinton nominates a balanced slate for the Supreme Court. Ditto for the Democrats if the Republicans win the presidency.

Or, an even better-advised president would do nothing and leave the Court with seven members and make the hangers-on earn their keep.