Here's Why Trump Doesn't Need to Replace Justice Kennedy at All - The Supreme Court Could Be Better with 8 Justices

With Justice Anthony Kennedy retiring from the Supreme Court to be replaced by a President Donald Trump nominee, the United States risks entering an era in which even a Democratic White House and Congress would struggle to implement a progressive legislative agenda.


This dynamic could deeply fracture the country, entrenching right-wing dominance in the judiciary with the power to effectively nullify the policy preferences of a majority of the country. Partisanship would only increase, and the likelihood of conflict, both outside and inside the government, would rise.

But there's a solution to this problem, and it's even easier to implement with Justice Anthony Kennedy stepping down.

If Trump were to decide not to nominate someone to take his place, and Congress agreed to limit the Supreme Court to eight justices, we might be able to actually reduce partisan tensions in the United States.

Eric Segall, a legal professor at Georgia State University, has been a strong defender of this concept. Contrary to popular opinion, he argues that having an even number of justices would be beneficial for the country:

With four conservatives and four liberals divided along party lines, the justices will have to try harder to reach consensus and will likely decide far more cases, to use Justice Sotomayor’s word, “narrowly.” Those are both beneficial, not negative, side effects of an evenly-divided Supreme Court. The court sets an excellent example for the rest of government and the American people when the justices work hard to reach results both sides can live with (or at least can vote for), especially in our most controversial and important cases.

When the justices do end up splitting on a 4-4 decision, the lower court's ruling will simply hold, which is far from a crisis.

And this move would not be unprecedented. The number of justices fluctuated in the country's early years, but for several decades the court has an even number — just six. It wasn't until 1869 that the Congress landed on the nine-justice court we have inherited.

It's possible that certain cases would need a decisive majority in the Supreme Court to avoid further conflict. But an odd-numbered court risks giving a disproportionate advantage to one party, the situation the country finds itself in now. And justices in an evenly divided court would be strongly motivated to come to a consensus.

To guarantee a more even-handed court, Segall has suggested that the Senate could adopt a rule requiring four justices nominated from each party, which is how the Federal Election Commission functions.

Essentially, this move would drastically weaken the Supreme Court. It would hold the other branches in check only when a majority of the justices believed something was truly out-of-bounds by law or precedent, which, given the partisan divide, would be a high bar.

But that puts the power back in the hands of elected representatives, and thus gives the voters greater control.

And though right now this argument certainly has great appeal to liberals, forward-thinking conservatives might also recognize its value. Right now, the Supreme Court's composition is messy and capricious — a heart attack or two in any given year can throw the whole thing out of balance, even if a party feels completely in control.

Reverting the court to an even number would make it more bipartisan and less conflict-driven. It would increase the stability of American politics at a time when tumult seems to be increasingly likely.

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