The absence of a ninth justice on the US Supreme Court won’t be a problem this fall, even if November’s election ends up being decided there, according to Stephen Breyer.
The Supreme Court justice, who appeared on MSNBC Monday to promote his new book "The Court and the World," explained that "the mechanics work about the same" with only eight justices – even if an issue as high-profile as the presidential election ends up on the docket. He also said that politics is far less important to court decisions than most Americans believe.
Given the precedent for presidential elections to be decided by the nation's high court, and claims questioning the validity of November's elections – from Donald Trump's frequent warnings about a "rigged" system to accusations of Russian interference – Justice Breyer's remarks have a particular relevance. Some say an eight-member court limits the exercise of justice, but others believe it forces the court to become a model for consensus that America badly needs.
The United States' highest court has been operating without a ninth justice since Justice Antonin Scalia died suddenly on February 13. The Republican-controlled Senate has since refused to hold the confirmation hearings necessary to select a replacement justice until the next president has been elected.
Democrats have criticized the GOP for leaving the court "hamstrung" with just eight justices, bound to end in deadlock without a ninth justice to serve as a tiebreaker. There have been relatively few decisions, however, where the justices have been unable to come to a majority decision. And, as Breyer notes, an even number of justices have presided over the court during some of the US's most tumultuous times.
An even number of justices handled cases when the Constitution was first written, and again for several years following the Civil War, as Breyer told MSNBC. The nine-member court was mandated by Congress in 1869, and the legislative branch retains the right to change the number of judges on the Supreme Court. Since those earlier courts “functioned with an even number of members,” the current court should also be able to, Breyer suggested.
In Breyer's view, the court can make decisions on highly political issues like the presidential election – even without a ninth justice to break a potential tie – because it is not itself particularly political. He sought to counter claims of political divisions within the judicial branch, saying, “Pretty much what you see is what you get.”
While it is “impossible to predict what legal issues may arise” around the election, the Supreme Court’s ability to make these decisions may be tested, writes Steve Wermiel, a professor at American University Washington College of Law, in an email to The Christian Science Monitor.
“The potential is there that Donald Trump will want to challenge some outcomes, given his broad claims that the election is rigged. Hillary Clinton, too, may find practices in some states that pose legal issues,” he explains.
Eric Segall, a law professor at Georgia State University, agrees with Breyer that the justices would find a way to resolve the issue without the need for a tiebreaking vote – though he says it “looks unlikely now” that the election will go to the Supreme Court.
“I believe the Supreme Court would issue a rule to move us forward, and one of the eight justices would compromise ... in order to move us forward,” he tells the Monitor in a phone interview.
That doesn’t mean that the Supreme Court is exactly nonpartisan, however. In fact, Professor Segall says the justices’ political affiliations, life experiences, and where they come from geographically all play a role in their decisions. The court reflects the justices’ “values writ large,” he says.
But an evenly-divided court means the judges have to “fight harder to reach consensus,” he explains, meaning the justices will be more likely to make a decision informed more by law than by politics, should it be necessary in November. That’s such a benefit, Segall argues, that an eight-member, politically-balanced court should become a permanent fixture. It might even be a model for a divided Congress, he suggested in a September article for Business Insider.
To Professor Wermiel, however, even a slim possibility of an even-split decision on such an important issue as a presidential election is cause for concern. “While it may be unlikely, imagine the harm to the credibility of the court and perhaps the country if issues important to the outcome of the election were to be resolved by a 4-4 tie,” he writes.
The White House has suggested that the Senate’s delay in considering candidates to fill the vacancy left by the death of Justice Scalia actually goes against the Constitution. In a July weekly address, Vice President Joe Biden quoted Scalia as saying that having eight justices on a case could mean that, “by reason of a tie vote, the Court will find itself unable to resolve the significant legal issue presented by the case.”
Other justices and former justices have also argued – against Breyer – that the court does not operate equally well without all nine justices. Shortly after Scalia’s death, Sandra Day O’Connor stated, “I think we need somebody there to do the job now, and let’s get on with it.” John Paul Stevens called for the vacancy to be filled “the sooner the better,” while Ruth Bader Ginsburg, speaking to the Second Circuit judicial conference in May, remarked, “Eight, as you know, is not a good number for a multimember court.”
That’s already a concern in other cases, as Richard Primus, a law professor at the University of Michigan Law School, wrote in Politico shortly after Scalia’s death. And the stakes are much higher in a presidential election, where the decision cannot be revisited once another justice is appointed to the bench.
“There is no certainty, but it is possible that there will be legal challenges, and the credibility of a court decision would be enhanced if the court is able to reach a majority,” Wermiel concludes.