Eric J. Segall

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Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. Thus, Congress should pass or amend a statute permanently implementing a Supreme Court comprised of an even number of Republicans and Democrats. To reach a decision and avoid deadlock on such a Court, at least one Justice would need to cross ideological lines, resulting in more positively received decisions, especially in politically charged cases. This article concludes that an evenly balanced Court would uphold the supremacy and uniformity of federal law, be more favorably viewed as a Court of law rather than a politicized institution, and would enable well-thought-out and rational procedure—rather than death, serious illness, or politically timed retirements—to drive the judicial confirmation process.