Is an evenly divided Supreme Court a good thing? Probably not, and as time goes by, it seems apparent that a divided Supreme Court will result in problems for our nation. Senate Republicans however, don’t seem to care; it appears that they care more about saying “no” to a president with whom they disagree than they do about doing what is best for the United States of America.
Something that protects the strength of our nation is having one Supreme Court say what the U.S. Constitution means. The U.S. Supreme Court prevents each federal circuit court and the state supreme courts from having the last say as to what the U.S. Constitution means within their respective jurisdictions. Final review of constitutional questions by the Supreme Court is essential, because for the Constitution to be effectively relied upon, it must have only one current interpretation.
Many reasonable people will undoubtedly disagree over the proper interpretation of the Constitution, but the same reasonable people can also come to the conclusion that having 13 federal circuit courts, and 50 state supreme courts, functioning as mini-U.S. Supreme Courts throughout our nation, is precisely what the Constitution’s author’s intended to prevent when they replaced the Articles of Confederation. This intention was expressed by declaring within the Constitution itself that it shall be “supreme law of the land.” How can there be more than one supreme law of the land? The Supreme Court prevents the fundamental laws of our nation from having a different meaning from one U.S. jurisdiction to another — a sort of legal balkanization.
Republicans respond by asserting that the court can conduct its business with only eight voting justices. Fair enough, until an ideologically controversial issue rears its head. Then the court’s purported functionality turns into, “the court expresses no view.” The fight over Justice Antonin Scalia’s replacement has showcased a fundamental flaw in our Constitution: that under certain circumstances, Congress can effectively decapitate the third branch of our national government by inaction; this is more than a mere check or balance.
Had the Founders anticipated this problem, they might have written a safeguard into the original Constitution. Unfortunately they didn’t, but because they were humble enough to recognize their fallibility as human beings, they laid out a process for us to change the Constitution as problems arise.
Instead of telling us why they are refusing to appropriately vet President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court, Sens. Orrin Hatch and Mike Lee should work to resolve this flaw in our Constitution. If they choose not to vote on the nomination, fine — that is their prerogative as U.S. senators. But as a voter in Utah, I want to see them fix the constitutional problem showcased by their current behavior.
I’m no constitutional expert, but an amendment reading something like the following might be a decent solution:
“The Supreme Court shall at all times be comprised of an odd number of voting justices; if at any time, a justice of the Supreme Court dies, retires, becomes incapacitated, or for any other reason leaves an even number of justices to vote in any case, then the justice with the least amount of seniority on the Supreme Court shall not participate in that case; and if by recusing themselves from a case, a justice creates a circumstance in which an even number of voting justices will hear a case, then the justice with the least amount of seniority on the Supreme Court shall not participate in that case.”
Just a thought for our U.S. senators; I like to see constructive solutions, not ideologically driven rhetoric.
Ben Aldana lives in Orem.