Friday, February 19, 2016

Let's Trim SCOTUS Down To Six Justices

To hear some on the left tell it, the Supreme Court would be hamstrung if it had to function for a year or more without a ninth justice. What to do in the event of a 4-4 tie? This would not have been viewed as a problem, however, by America's Founders, who created a Court with an even number of justices—six. In fact, Marbury v. Madison, arguably the most important case in the Court's 226-year history, was decided by a six-justice Court.

The Constitution, of course, leaves it up to Congress to decide how many justices will serve on the Supreme Court. In 1789, Congress passed, and President Washington signed, the Judiciary Act. That law determined that the number of Supreme Court justices should be six. The Congress of that day was full of men who had been at Independence Hall two years earlier and had participated in the writing of the Constitution, so they presumably knew what they were doing.

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Which two would you trim today to get down to six?

I'd definitely dump John Roberts. Here's one of the reasons why:

Before retiring from the Supreme Court in 2009, liberal Justice David Souter penned a dissent so critical of the court's conservative justices, Chief Justice John Roberts went to great lengths to prevent it from being published. That's one of the clams from The New Yorker's epic dissection of the 2010 Supreme Court Decision Citizens United vs. the Federal Election Commission. Taking us inside the legal wranglings of the high-profile case, staff writer Jeffrey Toobin describes a dissent Souter wrote at the end of his tenure at the Supreme Court. The argument, which remains unpublished, accused Roberts of engineering the outcome of the Citizens United case:

Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.

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If Roberts is the main culprit behind Citizens United, he needs to go.

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