In the recent Zubik v. Burwell, the “Little Sisters” contraceptive mandate case, the U.S. Supreme Court took the unusual step of the sending the lawsuit back to the lower federal courts and instructed them to try to “arrive at an approach going forward that accommodates the petitioners’ religious exercise while at the same time ensuring that women covered by petitioners' health plans “receive full and equal health coverage, including contraceptive coverage.” Reactions to the Court’s order have been mixed, though largely negative. Critics generally complain that the Court must be able to provide definitive and final answers to legal questions. According to these critics, the ability to resolve legal differences and lend clarity to the law is central to the Court’s role. This is something that an 8-member Court is not able to do. More damningly, an 8-member Court is “Not So Much Deadlocked as Diminished.” The obvious solution is for the Senate to confirm a ninth justice.
This is puzzling on many fronts. As a question of constitutional history: the Court hasn’t always had an odd number of justices. Under the Judiciary Act of 1789, in fact, the Court would have one chief justice and five associate justices. The Court also had an even number of justices (ten) during the Civil War. This history suggests that a focus on mere numbers misses the larger story. The focus should not be on the need for a new justice to break all ties when the Court is closely divided, but on why there is a need for such a justice at all. In other words, the focus should be on the rise and fall of the norm of consensus and its lessons about the Court, constitutional law, and judicial behavior. What does the need for a tie-breaking justice tell us about the institution, the justices, and constitutional interpretation? These are not idle questions.
As a question of constitutional law: The Court is not the final constitutional arbiter that critics of Zubik wish it to be. This is largely a myth fostered by the legal culture and the Court itself. The justices are keenly aware of the impact of their decisions on the relevant publics and acts accordingly. This is true across the Court's history, from the time of Marbury to Brown and the present day. Think about the last time the Court valiantly took on democratic majorities in the name of constitutional law.
I can't think of many either.
Whether we like it or not, the Supreme Court is generally in line with public moods and trends. This is particularly true for the notable cases that occupy the public’s attention, and about which the justices care deeply. These are the politico-moral issues, which are perceived as having right/wrong answers and thus have the potential to polarize a nation. These are the issues that opinion polls track, the issues that the public follows and understands, the issues about which most of us care deeply, including the justices. These are the classic “litmus test” issues, such as abortion and affirmative action, which Senators are sure to ask about during confirmation hearings, and which the public wants to know about prior to confirmation. These are the issues that define judicial eras. For the issues that matter, then, constitutional meaning is deeply influenced by public opinion. As a result, the Court is only as final as the public wants it to be.
As a question of constitutional theory: think about the amount of ink spilled in the last generation over the proper role of the Court in a democratic society. The debate has been deafening. To date, the critics might have the upper hand. It is difficult to reconcile judicial review with democratic theory. This is why the end of this Term offers a simple yet brilliant answer to Bickel’s famed difficulty: a diminished Court. And yet, critics of Zubik take the opposite view, and wish for a muscular and aggressive Court to take on existing majorities. What lies behind these arguments? Is constitutional theory no more than a question of whose ox is being gored?