Zubik v. Burwell, a contentious case which challenges the Affordable Care Act’s requirement that employee health plans provide coverage for birth control has been summarily sent back down to the lower federal courts with instructions to try to craft an acceptable compromise.
Earlier in March, the court failed to reach a decision in another significant labor case as a result of a four-to-four split, a now reoccurring phenomenon that, if nothing else, illustrates the structural importance of maintaining the full, nine-member court.
Moreover, many litigators have begun to view the court as being dangerously hindered in fulfilling its purpose—a seemingly “crippled elephant” whose only capability at this point is to propose complicated compromises for individual litigants, rather than provide the final word in interpreting the constitution and the nation’s laws as it is intended to do.
Further driving the tendency towards deadlock is the court’s current make-up of four conservative and four liberal leaning justices, the results of which in the past (it has happened on five occasions in the past century) have been that few cases involving significant constitutional law were decided. The principal concern is that, in an evenly split Supreme Court, it is difficult for the lower courts to know what constitutes the law.
Can the Supreme Court do its job without a full bench?
Many legal analysts do not see the eight-member court as being particularly detrimental in the execution of constitutional justice. After all, the Constitution does not require nine members, and the Court has operated with eight justices before. The U.S. actually began its constitutional journey with a six-member Supreme Court—clearly an even number.
A handful of constitutionalists have argued that a nine member bench (which in theory creates a tie-breaker), means that a greater number of issues are decided once and for all by the court.
However, a Supreme Court whose structure results in more decisions may actually constitute a failure of checks and balances.
Chief Justice Roberts has acknowledged, “It’s been subject to some criticism that you (an eight-member bench) can put things off. Some people think that’s bad—I think it has something to do with judicial philosophy. I think we should be as restrained as possible when deciding the issues, when it’s necessary to do so. I think that’s part of how I look at the job.”
What Do You Think?
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