Why Not Eight Justices?

Here is an interesting student op-ed on the size of the Court from the Harvard Crimson.

Here is a money excerpt:

Many of the court’s most controversial rulings have come on 5-4 votes. It’s possible that these votes were so close because the issues at stake were so contentious. But it’s also possible that 5-4 votes lack the imprimatur of authority that wider margins carry. As the current chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa, said after the court issued a 5-4 ruling in the 2000 case Bush v. Gore: “it naturally raises cynicism when you have so many 5-4 decisions.”

The history of the court in the 20th century is replete with instances of high-stakes cases decided by 5-4 margins. Perhaps the most infamous example is the 1905 case Lochner v. New York, in which a five-justice majority struck down a New York State law capping the number of hours that bakers could work. More than three decades later, when the Supreme Court nullified part of the New Deal legislation in the 1936 case of United States v. Butler, it did so on a 5-4 vote as well. Many of Rehnquist Court’s rulings that invalidated federal laws also passed by 5-4 margins, including the 1995 decision in United States v. Lopez that struck down the popular Gun-Free School Zones Act.

But if the court only had eight members, these razor-thin rulings would be a thing of the past. A 5-3 ruling might be more resounding—and potentially less divisive—than a single-vote margin. Alternately, a 4-4 tie would send the case back to lower courts—either to the states or the federal circuits.

Would those 4-4 ties cripple the judicial system? They might have the opposite effect. Different jurisdictions could experiment with their own approaches to complicated legal issues. They would be “laboratories of justice,” to borrow University of Wisconsin law professor Ann Althouse’s phrase—a phrase derived from Justice Louis Brandeis’ remark that decentralizing government could make the states into “laboratories of democracy.” And as these “laboratories” yield experimental results, their findings might help the Supreme Court justices formulate a more carefully-considered ruling if the once-tied cases ever returned to their docket.

In the current climate, 5-4 decisions establish binding precedents—precedents that may then be reversed if one swing justice leaves the bench. For example, Alito’s ascension to the spot formerly held by Justice Sandra Day O’Connor could conceivably lead to the reversal of 5-4 precedents on affirmative action, campaign finance laws, and partial birth abortion. With eight members, the court would need a two-vote margin to establish a new precedent or overrule an existing one.

What are your thoughts? Do you like this better than my proposal to require the Court to act by a vote of 7/9ths?

One advantage is it could be accomplished by a simple act of Congress.