“When the Court is evenly divided it’s going to do less, and that is a really good thing because in every Constitutional law case ever decided by the Supreme Court, the bottom line is, should five or more of nine judges in Washington, D.C., impose a national rule on everybody else?” said Eric Segall, Kathy and Lawrence Ashe Professor of Law.
Eric Segall, the Kathy and Lawrence Ashe Professor of Law, presented his “wild and crazy idea” for the U.S. Supreme Court during the Holiday Luncheon for the Georgia State Law Board of Visitors and Law Alumni Council on Dec. 6. Segall posits that the Court should only have eight justices, evenly divided between conservatives and liberals, as it is now.
“When the Court is evenly divided it’s going to do less, and that is a really good thing because in every Constitutional law case ever decided by the Supreme Court, the bottom line is, should five or more of nine judges in Washington, D.C., impose a national rule on everybody else?” he said.
Having eight justices since the death of Associate Justice Antonin Scalia and the Republican senators’ refusal to confirm President Obama’s pick has resulted in a Court that took less cases, was more centrist and had more stalemates, Segall said. “There was more agony or angst, and that’s what they should have given their job descriptions,” he said.
Segall doesn’t believe the Supreme Court justices should have life tenure. “When should five or more idealogically aligned, unelected, life-tenured judges in Washington, D.C., affect our country dramatically for a generation or more? The answer should be almost never. But it has.”
One example is when the Supreme Court struck down more than 200 laws dealing with workplace safety, unions, minimum wage and overtime between 1900-1936. It set the country back for a long time, Segall said.
“Almost every one of those laws would be constitutional today,” he said. “And, they did it not because there were clear violations of the Constitution; they did it because they could.”
However, given that it would take a constitutional amendment to change appointments of life tenure, Segall believes his proposal would at least make it more difficult for five justices to impose their platform for decades.
“The political makeup of the most powerful court in the world is decided by luck, death and politically-timed retirements and that is insane,” he said. “But if it’s always four and four, then the downsides of life tenure become reduced significantly.”
With four Republicans and four Democrats on the bench, by definition at least one justice has to vote with the opposite party to decide a case, he said. Knowing that the Court will always be evenly split along ideological lines will force the justices to have more consensus in decisions.
“That kind of bipartisan agreement is good symbolically, it’s good for the country, and it’s a great moment in history for us to say to this institution, if you’re going to act, you have to act with at least one bipartisan vote,” Segall said.
This will decrease the amount of backlash from some rulings, Segall said. “I think the American people will accept decisions better if they know there is some bipartisan agreement among the justices.”
Further, a Republican president may have to appoint a Democratic justice and vice versa, which will result in more moderate justices, he said.
Under his proposal, which would result in the Supreme Court “doing less” and thus imposing less rulings, would the lack of uniformity cause chaos? Segall thinks not. The Court only takes about 75 cases a year and of those, only about 20 percent result in a 5-4 decision, he said. The overwhelming majority of state and federal cases never get to the Supreme Court.
“If it’s not clear there should be a national rule, there shouldn’t be a national rule. Would there be a few cases where uniformity is drastically important? Maybe. But at the end of the day, if our country is riding on a question of uniformity, [the Supreme Court justices] will find a way. If we absolutely must have a national rule, they will find a way. And under my proposal they will find a way more narrowly and with more consensus, and the American people will buy in.”