Federal Courts and Nominations

The Supreme Court’s Role in our Constitutional Scheme: Why Eight is not Enough

Writing in the New York Times, Professor Barry McDonald argues that the Supreme Court is better off with just eight Justices, even if that means that the Justices are unable to decide some of the most important cases that come before them. To justify his proposal to leave the Supreme Court paralyzed, McDonald claims that, at the Founding, “the judicial branch was something of an afterthought,” and “judicial review, in the modern sense, did not exist.” McDonald’s argument is dead wrong.

Our Constitution gives the Supreme Court—along with the lower federal courts—a critical role to play in ensuring the enforcement of constitutional rights and maintaining the supremacy of federal law. Leaving the Supreme Court with only eight members—and unable to decide some of the most important cases that come before it—threatens the Court’s ability to do its job.

The Constitution’s explicit grant of judicial power to the federal courts to decide “all Cases, in Law or Equity, arising under this Constitution, the laws of the United States, and Treaties” was a direct response to the infirmities of the Articles of Confederation, which established a single branch of the federal government and no independent court system. Individuals could not go to court to enforce their federal legal rights, prompting Alexander Hamilton to declare that “laws are a dead letter without courts to expound and define their true meaning.” A central aim of the Constitution was to ensure that individuals could go to federal courts to redress violations of the Constitution and other legal wrongs. A dead-locked Supreme Court cannot serve this function.

When the Framers gathered in Philadelphia to debate a new national charter, they took pains to ensure that the federal courts created by the Constitution had broad powers to enforce the Constitution and federal law. The Supreme Court—the only court created by the Constitution itself—was designed to be the “keystone of the arch, the means of connecting and binding the whole together, of preserving uniformity in all the judicial proceedings of the Union.” The Court’s core function—to establish a binding rule of the law for the nation—can hardly be fulfilled when the Supreme Court splits 4-4.

McDonald belittles judicial review; the Framers, however, did not. During the debates over the original Constitution and the Bill of Rights, the Framers, time and again, explained that the courts would serve as a constitutional check on the elected branches of government. The Framers understood that the Constitution’s limitations on government “can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” Judicial review is hard-wired into the Constitution. McDonald simply ignores the Framers’ justly famous declarations asking “[t]o what quarter will you look for protection from an infringement of the Constitution, if you will not give it to the judiciary. There is no other body that can afford such protection.”

McDonald complains about 5-4 Supreme Court decisions, such as last year’s marriage equality ruling, that interpret the Constitution to invalidate democratically-enacted laws. But, in our system of government, constitutional rights are not left to the will of the majority. That was understood by the Framers, as it is today. Courts follow our Framers’s design when they hold that legislative or popular majorities cannot trample on the Constitution’s promise of liberty and equality for all.

A deadlocked Supreme Court cannot do its job. It cannot decide important, closely-divided cases about the meaning of the Constitution or federal laws, leaving people in different parts of the country with different rights. The Supreme Court was created by the Constitution to declare the law of the land. With only eight Justices, the Supreme Court, all too often, cannot do the job the Framers assigned to it.

This piece is cross-posted to Balkinization.

This article has been reprinted in the following publications

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