When Even Is Odd

Since the passing of Supreme Court Justice Antonin Scalia, the court has been forced to function with eight justices instead of the usual nine. While the Democrats and Republicans have been disagreeing over who should get to choose his replacement (Democrats pointing out that President Obama is still the president, and Republicans insisting that the American people deserve the chance to have their voices heard when they choose their next president), the shorthanded court has continued to hear arguments and deliver opinions.

The issue raised most often is whether or not the Senate has a constitutional obligation to consider, hold hearings, and/or vote on the president’s nominees — an argument the president and his allies make often. But when you consider the fact that the Constitution never speaks of such obligations, only saying that the nominees get appointed only after the president gets the advice and consent of the Senate, it’s pretty clear that argument is a red herring.

The argument that the Senate has, traditionally, always moved on Supreme Court nominees in one way or another is also irrelevant in this particular case. After all, President Obama himself, who is insisting the Senate owes his nominee, Judge Merrick Garland, an up-or-down vote, himself (unsuccessfully) sought to deny Justice Samuel Alito an up-or-down vote when Alito was nominated by President Bush.

The one question which allows for legitimate disagreement is when you consider whether or not having a court with only eight justices is good for the country. If it isn’t good, the argument continues, Republicans have a moral obligation to right that wrong. If it makes no difference, or if the argument can be made that an even number of justices is a good thing, they obviously don’t need to do anything.

Now it’s time for one quick historical note: the court has not always had an odd number of justices, and the number of justices is not found anywhere in the Constitution. The court has had, throughout its history, as few as five justices, as many as 10, and even numbers such as six, eight and 10.

The reason one would want an uneven number is simple to understand. When a case is brought to the court that is decided 4–4, the result is, in essence, nothing. The previous court’s decision stands, but without a Supreme Court ruling, it is not binding on the entire country, nor does it create legal precedent. The possibility of this outcome, the argument goes, is not healthy.

However, that very reasoning can be used to make the argument for an even court. If the Supreme Court has such incredible power, shouldn’t it be limited to cases where justices are not evenly divided? With an even court, there are no more 5–4 decisions that impose sweeping change on the entire country. The very minimum needed to do so would be more than 60 percent of the court — decisions having a 5–3 margin.

What is most interesting is that, despite it having (some, but still) little to do with political ideology, the divide over this question at this point in time is starkly political. Republicans will earnestly believe that an even court isn’t the worst thing, while Democrats will detest the very idea. And this actually does make sense.

Harav Yitzchak Elchanan Spektor was approached by two talmidei chachamim (whom we will call Reuven and Shimon) to adjudicate on a monetary dispute they had while at the yerid in Kovno. He heard them out and told them he needed a few days to deliberate.

The next day, he called them in, and asked them if they would serve with him as Dayanim on a din Torah that had come before him that day. After the two sides presented their cases, he asked them each what they thought.

Reuven sided with the plaintiff, and felt that he was in the right. Shimon, however, disagreed. He felt the halachah was on the side of the defendant, and sought to rule accordingly.

It was only at that point that the Kovno Rav let them know that the litigants in the case were only there because he asked them to come. Rav Yitzchak Elchanan pointed out that according to what Reuven wanted to rule in that case, Shimon was in the right in their dispute. According to what Shimon wanted to rule, Reuven would be in the right. But because it affected them personally, they were unable to see anything but what they wanted the outcome to be.

Many times, we too are like the Republicans who now believe a divided court is a good idea, but who, if the potential nominee were a conservative jurist, would believe the other way. We can also be like the Democrats who speak of the need to allow for a fifth vote to break potential ties, but then decry 5–4 votes they don’t like as being illegitimate.

Recognizing this is the beginning of being able to overcome the power of negius.