It's Not Heads or Tails: Should Scotus Have an Even or Odd Number of Justices?

59 Pages Posted: 8 Jun 2021

See all articles by Michael Miller

Michael Miller

affiliation not provided to SSRN

Samuel Thumma

Arizona Court of Appeals

Date Written: May 30, 2021

Abstract

For decades, politicians and scholars of various political persuasions have suggested reforms to “fix” the United States Supreme Court. They are often based on perceptions of partisan politics affecting the selection of justices and their resulting decision-making. Few proposals, however, address a basic, unavoidable question: Should there be an odd number of justices, or an even number? This article provides a method to address the issue, what we call “The Question.”

Notwithstanding long stretches where the Court has had an odd number of Justices, an even number is permitted and has occurred in the past. Surprisingly, there is virtually no scholarly literature about the differences between an even and odd number of justices. Yet this is a topic on which almost everyone has an immediate opinion. We submit this question probes fundamental and sometimes unexplored beliefs about the purpose and function of the Court, the decision-making process, and the roles of the three branches of government in interpreting the Constitution. It also illustrates the relative importance of getting a decision versus forging a consensus, and the difference of “slow” vs. “fast” when it comes to Constitutional interpretation.

Using an interdisciplinary approach, we examine ten factors, including efficiency, accuracy, consistency, non-constitutional cases, partisan wrangling, group dynamics, and judicial decision-making in issue selection and merits conclusion. Although SCOTUS is the primary focus, our analysis applies equally to state supreme courts having discretion in the cases and issues they choose to decide. Proposals changing the size or structure of the Court should carefully consider the impact — and potential benefits — of an even numbered Court. This article informs that discussion and provides a method to address The Question.

Keywords: United States Supreme Court, Reform, Interdisciplinary, Separation of Powers, Federalism, State Supreme Courts, Judicial Decision-Making

Suggested Citation

Miller, Michael and Thumma, Samuel, It's Not Heads or Tails: Should Scotus Have an Even or Odd Number of Justices? (May 30, 2021). Available at SSRN: https://ssrn.com/abstract=3856644

Michael Miller (Contact Author)

affiliation not provided to SSRN

Samuel Thumma

Arizona Court of Appeals ( email )

1501 W. Washington St.
Phoenix, AZ 85007
United States

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