Supreme Court Reform
It is sensible to presume that Supreme Court decisions are important enough for the nation that having 5-4 decisions is just too unimpressive, almost cavalier. Requiring a margin of two votes or a two-thirds majority decision makes more sense. Forget history. Forget tradition. The public deserves Supreme Court decisions that reveal a “truth” more meaningful than a preponderance of the evidence, something a lot closer to beyond a reasonable doubt.
Why should the lives of Americans depend on just one vote joining four others as so often has happened with truly important cases? Is it not more reasonable to believe that if only one vote makes a difference in the final, ultimate position of the American judiciary system, then something is wrong? That there has been too little weight on the majority side. That there is just too much weight to the views of the minority. A one vote margin is just not good enough for the highest court in the land. It is not good enough for a truly great democracy.
Why would reasonable people be against this? Does it complicate the “political” game of selecting new associate justices and the chief justice? Or, will legal scholars raise concerns about the legitimacy of past 5-4 decisions? Or, will people say that we elect our leaders in a way where just one vote can define the difference between winning and losing? None of these matters. It is more important to go forward with improving our judiciary system at the very top where so much is at stake. Indeed, it is fair to argue that more is at stake than any election.
Pundits talk so much about how divided our nation is. True enough. But 5-4 Supreme Court decisions support division over unity. There is no healing with 5-4 decisions. There is no compelling reason for the “losers” to think more and open themselves enough to see the merits of the majority position.
Moreover, 5-4 decisions too easily reflect situations where the court majority is decidedly in the wrong. If somehow we could get a large fraction of Americans to read the majority and dissenting opinions in the recent eminent domain case, Kelo v. New London, I have little doubt but that an overwhelming majority would side with the minority on the court. It is comforting to see Congress immediately start to figure out a way to undermine this court decision. But it is better still to imagine the court being unable to reach a 6-3 decision for this case. I wish some outfits doing national public opinion polls would do this.
But we do know that in the case of Roe v. Wade that the majority of Americans side with the slim past abortion majority on the Court. Now there is considerable political gaming to overturn that slim court majority. Would it not be better to require a two-vote margin of victory to overturn any such important decision?
The nation would benefit from public discussion about this idea. Do our leaders have enough courage to do this? The kind of great democracy President George W. Bush so easily talks about merits such debate about such an important idea. It is one thing for justice to be blind, it is quite another for the scales of justice to shift so little to establish what justice is. A more decisive tilting of the scales is needed for our Supreme Court.
[Joel S. Hirschhorn is the author of Sprawl Kills – How Blandburbs Steal Your Time, Health and Money, and Delusional Democracy – Fixing the Republic Without Overthrowing the Government.]
