How Many Justices Should It Take

The platitude is that we are a nation of laws, not men.  This buck stops at the Supreme Court, where we rise or fall on the sensibilities, philosophies and experiences of Nine, right?  Well, not exactly.  It’s actually five, not nine.  Every decision of the Supreme Court of the United States is dictated by the votes of merely five people.  Fine people all, but still just people.

For the most part, this isn’t, and shouldn’t be, a problem.  Most critical decisions in the law are made by just one person, the trial level judge.  After that, the free-hand is far more constrained, and subject to greater scrutiny.  But when it comes to a court holding a law (not conduct, but a law) unconstitutional, that’s a big thing.  For better or worse, our tripartite system puts laws through many eyes and hands before they are imposed on the citizenry.  Each pair got there by election.  We, in other words, picked them to make decisions for us.

The same can’t quite be said for the Supreme Court Justices.  While they are nominated by elected officials, and subject to the advice and consent of elected officials, there are layers of distance that distinguish them from anyone else in power, not the least of which is the fact that they enjoy life tenure.  Ask any teacher, there’s nothing better than tenure to turn Mr. Rogers into Bobby McGee.

For non-lawyers, there is something almost mystical about the position of Supreme Court Justice.  They are endowed with an intelligence, an understanding, a wisdom, that distinguishes them from the other 300 million.  It’s a branch of government, a co-equal branch at that, which is comprised of nine people, who remain for life, passing judgment over the other two.  It is, unquestionably, an awesome amount of power and responsibility.

In his New York Times op-ed, Ross Douthat reflects on the fact that it takes only a majority of the nine, five human beings, to declare a law unconstitutional.  While the raw number, in a vacuum, may not strike one as intrinsically problematic, consider how many decisions of recent vintage have been decided by a 5-4 split.  More to the point, consider how many laws have been declared unconstitutional.


Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.

If it seems like it’s happening at an unprecedented clip these days, it is.  Part of the reason, which Douthat neglects to mention, is that we already had a lot of laws in place that covered pretty much everything that needed to be legislated.  That left Congress without much to do as far as the basic social compact was concerned, which was bad news for all those politicians forced to run for office over and over, each of whom needed an accomplishment to show their constituents to justify their remaining on the dole.  That left a lot of people scrambling to find something to legislate, forcing them to tweak around the edges of appropriate governance and giving rise to far more dubious legislation than their predecessors. 

But Douthat’s primary point is that 5-4 decisions declaring laws unconstitutional emits a stink.  It reflects a transitory split along political and philosophical lines, one that changes with each new Justice and his or her nominating patron.  Constitutionality was supposed to be for the long haul, not subject to change every time a new body dons the robe.  The stability, reliability, continuity of the process demanded that there be clear, firm agreement amongst the chosen Nine about what the Constitution meant.  Each 5-4 decision undermined our faith in the stability of the law.

Detractors of 5-4 decisions come from all parts of the political spectrum,  We want desperately to see declarations of constitutionality, or not, be unanimous.  We want to know with certainty that it’s reliable, that it won’t change with the next personnel shift.  And as painful as this may be to state, we want to believe that a mere five can’t undo the balance of government, with four in disagreement. 

It is unseemly that out of the nine chosen ones, five insist that no rational person could possibly see things any way other than as they do, while the four in dissent explain why the majority is clueless.  After all, only one of the five need be clueless for the earth to shift on its axis and the entirety of the decision, the law, the constitutionality and the social compact to swing in the opposite direction.  Ultimately, five is reduced to one.  By the vote of a single Supreme Court Justice, everything changes.


There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation. To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds — versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.
While I am very suspect of Rooseveltian methods to manipulate the Supreme Court, and would hardly agree with an attempt to try to Schechter Poultry them, Douthat has a point.  By requiring a supermajority of 6 to declare a law unconstitutional, then it would put the laws of this nation in the hands of two people, fully doubling what’s required to turn the earth on its axis.  That’s comforting.

One comment on “How Many Justices Should It Take

  1. Tonal Crow

    This proposal would make the Supreme Court significantly less protective of minorities’ rights, a major (and not “comforting”) change in the balance of powers that the article doesn’t even mention.

    On the specific question of whether the Court is too eager to overturn statutes, I think that the Court generally has overturned too *few* statutes (especially federal statutes), rather than too many. Consider, for example, the long string of decisions based in Wickard v. Filburn, which has been used, among other things, to “justify” federally prosecuting a person for using her own labor to grow a plant in her own backyard. Somehow I don’t see where Art.I s.8 cl.3 — or any other Constitutional text — grants this power, nor why it is not prohibited to the federal government by the 10th and 9th Amendments.

    The U.S. Code and CFR contain several bookcases-full of statutes and regulations that the Court has either upheld or has not ruled upon. It’s not as if the Court has denied Congress (and the President!) extensive powers over nearly every sector of our lives. Why does it need more such powers? And how does the argument for those powers comport with the Framers’ intent that federal powers be so weak that a Bill of Rights was unnecessary to prevent them from encroaching upon our rights? As Hamilton said in Federalist 84:

    ——
    For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
    ——

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