Transforming Our Judiciary

The Supreme Court is immensely powerful: it has the power to change the meaning of the Constitution with a simple majority vote of nine members. And since the Constitution is the “supreme law of the Land,” according to article Six, clause Two — and centuries of jurisprudence — this means that the Supreme Court has incredible power over state and federal law, despite its passive nature.

Thankfully, the justices on the court are some of the best legal minds in the country. Whether or not you agree with their ideology, it’s hard not to acknowledge their qualifications: every justice has a law degree from the nation’s most prestigious law schools and many clerked for the federal judiciary, served on a lower federal court or taught law. However, despite their expertise on law, justices don’t always agree. Often, the opinion of the court — the one that sets precedent — is followed by one or more dissents.

This becomes problematic when many of the justices disagree with the majority vote. From 1967 to 2017, 19.5 percent of cases were decided by a single vote. Just last year, the Supreme Court decided that a California law requiring anti-abortion “crisis pregnancy centers” to notify women about abortion was unconstitutional in National Institute of Family and Life Advocates v. Becerra. Five justices voted to block the law and the other four voted for it to stay in effect. Now, that decision is legal precedent for lower courts across the nation to apply. However, the opinion of the court was opposed by four of the most qualified jurists in the nation. If we were to “rerun” the court’s proceedings with one justice swapped for another equally-qualified candidate, the decision could reverse. About a fifth of the precedents set by the court in the last 50 years could reverse as well.

At the same time, the court isn’t as divided as it might seem: it unanimously rules on a whopping 41.3 percent of cases, and 79.4 percent of the time, the opinion is decided by more than a single vote. That is, on the vast majority of decisions, America’s leading jurists agree across ideological lines rather than voting on a simple conservative/liberal divide. Therefore, when the court rules 5-4 on a case, it’s proof that the interpretation of the Constitution is too disputed to become a precedent.

It’s the close, controversial cases, like “National Institute,” that drive the politicization of the Supreme Court, an institution intended to be apolitical. They’re why Senator Mitch McConnell famously refused to hold hearings on Merrick Garland’s nomination during the last term of Obama’s presidency. And they aren’t controversial simply on political grounds: justices have important, jurisprudential arguments in favor of particular opinions. Something about the court needs to change in order to reflect this disagreement.

By switching to a stronger requirement for precedent, we can change — for the better — the court’s powers. The court should continue to decide specific cases even when the justices split 5-4. However, these opinions shouldn’t become precedent. Instead, in order for a decision to become the official interpretation of the Constitution, the court must rule 6-3, 7-2, 8-1 or unanimously in favor of the decision. In 80 percent of cases, nothing would change. But in the 1,212 decisions in the last 50 years where a single vote made a difference, the court would correctly acknowledge the issue’s controversy and refrain from establishing precedent.

This will change the stakes of the court and make it more difficult to politicize a single seat. Of course, the ideological balance of the justices still matters, but no longer can a single conservative justice change the entire jurisprudential direction of the country — nor can any single liberal justice. Many of the court’s most iconic decisions, including Brown v. Board of Education, McCulloch v. Maryland, Gideon v. Wainwright and United States v. Nixon, were unanimous and should clearly be precedent. Even more decisions split the court 8-1, or 7-2, or 6-3. But no precedent would be set by the most controversial of cases. It’s true that this reform would make the court less able to change how the Constitution is interpreted. And it’s also true that some important cases — such as Obergefell v. Hodges, which legalized same-sex marriage across the United States — wouldn’t have the effect they do now. However, the court also wouldn’t set precedents in favor of voter roll purges and Trump’s travel ban.

It’s time that we reform the Supreme Court of the United States to make it fairer, less partisan and yes, less powerful. When coupled with other reforms, like staggered term limits or adjustments to the number and composition of justices, setting a higher bar for precedent will change the court’s powers for the better.