Constitutional Math

comments 6
Democracy's Constitution / The Sjupremes

ADDENDUM 12/11/18 — Several readers responded to this post by saying they thought it would be best if Chief Justice changed his votes, but didn’t speak publicly about his reason for doing so.  It appears that he is doing just that — aided by, of all people, Brett Kavanaugh.  See this NYT story.

In a recent post I called for Chief Justice John Roberts to act.  I felt that the politicization of the Supreme Court was destroying its legitimacy in the eyes of most Americans and that the Chief Justice should take action to “save the Supremes.”

And, lo and behold, Roberts has taken action, publicly criticizing President Trump  for referring to a federal  judge as an “Obama” judge. Roberts insists all judges are just “judges.” The problem, of course, is that Roberts is only right in a civics class sense; the Supreme Court is now inhabited by “Republican” and “Democratic” justices.

It all started when the Republican party started vetting potential judicial appointees on how they would vote on issues dear to the hearts of Republican voters.  Roberts himself would never have been appointed Chief Justice if  he hadn’t received the Federalist Society seal of approval as a “Republican” justice.  And, truth be told, he has seldom disappointed.

But now we need Roberts to  give a clear signal that he recognizes that,  if the Court starts handing down  decisions on  controversial issues with support only of “Republican” justices,  the public’s perception of the Court as being  above the  push and shove of partisan politics will quickly evaporate– and with it any positive verdict on the “Roberts” Court.

That’s why I suggest  that Roberts take a simple action that will change the judicial playing field. He should  announce that in the coming Supreme Court term he will not support any decision of the Court that does not receive the support of at least  six  justices.  Because there are only five “Republican” justices, this  would require the support of  at least one “Democratic”  justice to change the constitutional  status quo.  All decisions would have at least some  bi-partisan support.

One positive side effect would be that this would nurture more bi-partisan cooperation.  This might include some  movement towards the center.  That, of course, is at first glance alarming to leftist ideologues like myself, but maybe we have to come to accept the fact that in a nation where almost half the voters chose  Donald Trump  we cannot expect that the ACLU will always win.

That does not mean the Court cannot still be an agent of change.  Remember that  almost all landmark Supreme Court decisions (like Brown v. Board of  Education  and Roe v. Wade) have had strong support from justices appointed by presidents of both parties.  Good things can happen when justices are “just” judges and not political surrogates.

Would it be proper for Roberts to make such a commitment?  Certainly the text of the Constitution does not condemn it.  Art III, Section  1 only establishes  “one Supreme Court”.  It does not refer to the number of justices who will comprise the Court or how they should make their decisions.

Nor  would the Roberts action be “political” in any nefarious  sense. It is not  designed to further the policy goals of one party or the other. Instead it would help the Court retain the legitimacy it needs to perform its constitutional role as a “check and balance” on the other branches of of government.

It also would put the politicians on notice that the Court will not stand by and allow its legitimacy to be destroyed for a goal no more worthy than providing political parties one more issue upon which to divide the nation.

The Republican party has made Roe v. Wade an integral part of its campaign strategy for years (despite the fact that its majority opinion was authored  by a “Republican” justice); and now I read that Democrats feel that their vocal opposition to Brett Kavanaugh played a role in their recent success in congressional races.

The parties are not likely to save the Court.  Maybe it’s time for the Court to save itself.





  1. Cathy Bishop says

    I like the idea, but I’m not sure it should be a publicized by Roberts. In this administration, it would only goad the President to respond politically.
    Nevertheless, I do think that you should write a NYT editorial on the subject addressed to Roberts and urge the public to keep track of the decisions of the Court to see how many attract justices from both liberal and conservative sides. More examples of how decisions in the past on major issues did attract both conservative and liberal justices might be instructive too.


    • Thanks, Cathy,. I agree that he would be better off tactically if he did not go “public”, but I thought my suggestion should be public. I will give serious consideration to your suggestion that I do more to publicize the idea, but as you know, I am even older than your husband and as you know, that’s pretty old.


  2. J K donnelly says

    What is he to do when he is faced with a critical issue and he is absolutely certain the right has the the constitutionally correct holding-e.g. overturning Roe vs Wade_ but he cannot find a 6th vote.


  3. Dolores Donovan says

    I like the idea, but think it needs more jurisprudential elaboration. I went to law school in the era when judges “found,” not made, the law — an inherently conservative proposition, I know, but one that has stayed with me. From that perspective, Roberts would be giving something like the papal imprimatur to any result on which six judges agree. That would leave five-judge opinions in limbo. I seem to recall that some civil law traditions assign greater or lesser weight to Supreme/High Court opinions depending on the size of the majority.

    Also, have you checked to see whether there is anything in the Judiciary Act or other relevant statutes that might prohibit your constitutional math solution?

    And thanks for commenting on my Animal Law article!


    • I think the binary choice between “finding” and “making” the law is an unfortunate way to discuss the problem: the Court has to do both, finding the appropriate legal text and then interpreting it, a function that always includes an element of creativity. This is how the Supreme Court has functioned since Marbury v. Madison.

      As to the 5-4 decision dilemma, let’s remember that if there are five votes for a decision, not including Roberts, it becomes good law, but this would require the support of one “democratic” Justice. In the more likely scenario that Roberts would be the deciding vote, his abstention would lead to a 4-4 tie, a situation which the Court has always handled by treating it as an affirmance of the decision of the lower court on the concrete dispute, but according it no value as precedent.

      As I hope I made clear, I liked your animal rights article. Very creative!


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