Opinion: Eight justices isn't enough for a functioning Supreme Court

A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com

With just eight members at work, the U.S. Supreme Court appears deadlocked on Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case. Law professor Laurence H. Tribe and attorney Joshua Matz warn that similar situations could become the "new normal" as vacancies go unfilled:
With 24 cases still to decide this term and only eight justices to decide them, the Supreme Court has mustered all its resources to find (or manufacture) consensus. Many rulings — even those with lopsided majorities — hint strongly of compromise. So far, the justices have mostly decided not to decide, drafting narrow opinions that leave big questions unanswered.

It is in vogue to treat this term as a one-off, yet another result of madhouse election-year politics. On that view, the court just needs to tread water a while longer. In the meantime, each of us can hope that justices who share our particular vision will end up with a majority.

But when “exceptional” circumstances endure long enough, advance powerful political interests and are tolerated by the public, they can easily become the new normal. One or more vacancies will likely arise soon enough, leaving the court’s ideological balance up for grabs. Especially in times of divided government, the historic norm of swift confirmations might be cast aside — replaced by lengthy delays that partisans on both sides will opportunistically decry or defend.

Long after the current vacancy is filled, eight-justice courts may occur with depressing regularity.

Get the Story:
Laurence H. Tribe and Joshua Matz: Will eight justices become the new normal? (The Washington Post 6/3)

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