Nine Supreme Court justices are not enough

A nine-member Supreme Court is a small sample size to judge issues. Each judge represents a data point to weigh in deciding the result. For every new case, this process starts over. With just nine judges, the opportunity for bias and skewing each judgment becomes very real. And that, along with the current ideological process of selecting federal supreme court judges, is a central issue.

To put it another way, if we subject the court’s opinions to a scientific peer-review process, we could suggest that each judgment, based on the nine-judge sample size, is subject to error. The peer-review could claim a Type II statistical error and indicate that more data (i.e., justice opinions) are necessary to prove the hypothesis (i.e., judgment of the court). Statistics tell us that a sample size of 30 is minimal to achieve a normal distribution of the study population and avoid Type II errors.

For example, the Supreme Court’s opinion, and perhaps the worst in our history, regarding the 1857 Dred Scott case, looked to settle the slavery issue once for all. In the run-up to the court’s decision, President James Buchanan, working alongside pro-slavery Chief Justice Roger Taney, leaned on Supreme Court Justice Robert Grier of Pennsylvania to vote against giving Scott his freedom. Grier was anti-slavery in his beliefs, but Buchanan convinced him to go along with Taney and the Southern majority to show a Northern unity in the decision. President Buchanan helped skew the results, creating a bias, and it did not work. It massively failed. Abraham Lincoln, Fort Sumter and the Civil War were about to be unleashed.

The Dred Scott decision is, sadly, easy to pick on. So let’s look at the favorable 1954 Brown vs. Board of Education. The court unanimously ruled 9-0 that racial segregation of children in public schools was unconstitutional. The court got it right. But how did they arrive at their decision?

Well, Chief Justice Fred Vinson died suddenly in 1953, resulting in the appointment of Earl Warren by President Dwight Eisenhower to the helm of the court. Before his death, Vinson muddled the court’s leadership by his narrow-minded interpretation of the 1896 Plessy v. Ferguson case’s constitutionality and the Jim Crow laws that it ushered in.

Warren brought a new perspective to the court, and our nation is fortunate for the outcome, but an arbitrary circumstance paved the way for the court’s 9-0 ruling. That, in and of itself, should make us question the process.

The answer lies in the size of the court. Based on nine judges, Taney, Vinson and any chief justice including Warren, along with any president and other contemporary matters, can manipulate and skew the court’s opinion. That suggests that each new judgment is then capable of being biased and, by default, flawed.

Nevertheless, while a court with the size of nine has always been ripe for manipulation, a more unwelcome set of actions may be unfolding. Each political party is threatening to pack the court with more judges. If that should happen, it will create an institutional bias worse than the current nine-member court. Packing the court would revisit the civil unrest that Buchanan’s pressure on Grier caused, and it would be disastrous for our nation.

So what do we do? We need to lessen the emotion brought by having only nine judges on the Supreme Court. Add more judges, and this will allow the process to become more objective. And we need to also give the people more of a voice in the process.

There would be nothing wrong for our country to carry two Supreme Court justices from each state. But at least one. If we did, the stakes would not be so high. The public’s intuitive knowledge of the court size would temper the current circus of selecting judges.

And we could undoubtedly accept judges who can interpret federal laws, while underneath their cleverness, there may also be some bias toward their state’s interests. If the opportunity can happen in all 50 states, it normalizes to each. And states’ interests are much more benign and healthier for the nation than nine judges subject to the bias of the political party that nominated them. And if we had 100, or 50, of our brightest minds, quietly interpreting the statutes and progressing along with the nation as a whole, the jurisprudence would have a more objective chance at accuracy — and truth.

Allowing each state to send its nominee(s) to the Senate for consideration would serve the nation much better than the current circus. We also need to let the present process sunset with each current judge’s departure from the court.

Jed Dukett is an acid rain scientist and lives in Tupper Lake.


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