Do We Need a 9th Supreme Court Justice?

It has been several weeks since the shocking death of Supreme Court Justice Antonin Scalia rocked our nation. The implications of the death of a Supreme Court Justice on such a closely divided Court will have a lasting impact on American democracy and begs the question, “Do we need a 9th Supreme Court Justice?”

Immediately after Justice Scalia’s death, both sides were beginning their bickering as to whether or not President Obama, in his final year of office, should appoint a 9th Supreme Court Justice. The Republicans immediately argued that the next President of the United States should appoint the next Justice. President Obama and the Democrats countered argued that it was his Constitutional obligation and that leaving the Court with only 8 Justices for more than 300 days would do a disservice to our nation.

I write this opinion article not with an eye towards my personal politics or even my personal beliefs, rather from the view of a lawyer who fights nearly every day for people’s rights for access to the courts.

As a lawyer admitted in multiple States and Courts, I have taken an oath. I have taken an oath to protect the both the Constitution of Florida and of the United States. Article III of the U.S. Constitution establishes the Supreme Court of the United States. It does not, however, set out the number of Justices which is determined by Congress (28 U.S.C. 1.))

For a lawyer and litigants, the Supreme Court of the United States (SCOTUS) is the “end of the road.” Every year 7000+ cases are petitioned to be heard at SCOTUS. Most of these cases have been through at least one level of appeal before even reaching SCOTUS. SCOTUS grants review and oral argument of approximately 1{7b0f9a613a6857e14562fa0a1b26cd067b995d91d673512a1ec838e971e7f3c9} of all cases appealed to the Highest Court. Most appeals are heard after appellate review at either the State Supreme Court or one of the Federal Circuit Courts of Appeal.

A Divided Court

Congress has determined that SCOTUS shall have nine Justices (including the Chief Justice.) An odd number of Justices allows majority decisions to be made in most of the cases.

With the unfortunate death of Justice Scalia, the SCOTUS is left with 8 Justices – 8 very evenly divided Justices. In the event that the 8 Justices decide a case on a tie vote (4-4),  the decision of the lower Appellate Court would stand but would not necessarily create universal legal precedent outside of that original jurisdiction. This problem gives the lower Appellate Courts significantly more power and gives the lawyers and litigants even more uncertainty moving forward. All lawyers search for “legal precedent.” There is no higher legal precedent than decisions coming from SCOTUS. Given the incredible amount of fighting between the two parties, it is conceivable that Justice Scalia’s position could remain vacant for well over a year. There is certainly no guarantee that the next President would be able to pass a nominee. If a Republican President wins, the Democrats in the Senate could continue to punish any Republican nominee in retribution for the Republicans refusal to consider any nominee put forth by President Obama.

My concern as a practicing lawyer would be for the litigants and lawyers who are left petitioning a Court with an equal number of Justices. It takes 2 years due to the in-fighting to nominate and confirm a new Justice. Without a 9th Supreme Court Justice, that would leave possibly hundreds of cases decided by a 4-4 split, which would leave the decision of the lower court in tact – without any clear precedent to other litigants!

Considering the Consequences

My law firm has tried complex cases against some of the most powerful companies in the world. Our clients have had their appeals heard at the Florida Supreme Court and the Eleventh Circuit Court of Appeals. To get a case from trial to these Courts can cost the litigants several years of painstaking work and hundreds of thousands (sometimes even millions) of dollars! I can’t imagine taking a case to trial, then to the District Court of Appeal, then to the Florida Supreme Court, and finally having a successful petition to the SCOTUS only to find out that my client’s case could not be properly decided at our country’s only Constitutionally mandated Court because of bitter in-fighting and politics!

Furthermore – assume that there is a disagreement between the Florida Supreme Court and the Georgia Supreme Court. A successful petition to SCOTUS could potentially resolve this disagreement. By way of a purely hypothetical example, imagine that the Florida Supreme Court has ruled that a plaintiff can sue a physician for harm done at an emergency room, while the Georgia Supreme Court has said that there is an absolute bar on suing for alleged harm done at an ER. If the SCOTUS had agreed to hear this case on the merits intending to resolve a conflict between the two highest courts of the state – a 4-4 decision would leave in tact the decisions of each of those states! This would mean that people living within miles of each other would be subject to vastly different laws and avenues of redress for injuries. It is equally unknown if the SCOTUS would ever get another chance to resolve this potential conflict! This would leave years of uncertainty left after SCOTUS had granted the petition to resolve a conflict.

Our Founding Fathers set up a wonderful system of government (in my opinion, the best system in the world). It is a system of 3 branches of government and checks and balances. The two branches of government (Executive and Legislative) owe it to their third counterpart (Judicial) to make sure the Country is functioning at full strength. This is not a political opinion to say who President Obama should nominate or even what the Senate should do with that nomination. All I hope is that for the sake of our wonderful legal system that the two sides try to overcome their differences, find some common ground and find 9th Supreme Court Justice that will be a successor for the late, great Justice Antonin Scalia.