The Supreme Court has become a very powerful arm of the government, in many situations even stronger than the legislative branch since the Supreme Court has assumed the role of ruling on the “constitutionality” of everything that exists including duly passed bills by the legislative branch and signed into law by the executive branch. The Supreme Court has assumed the role of ruling on social issues, issues that have never become national law such as abortion and homosexual marriage.
When the Supreme Court has made its rulings, the public and many in the other two branches, have referred to these rulings as law. The Constitution is very clear on how a law is passed, and the Supreme Court has no role. These rulings should not and cannot be deemed to be law according to the Constitution.
In effect, the Supreme Court has become an oligarchy with nobody challenging their rulings or there usurpation of power. There is for all purposes no effective check on the power of the court. Even district and appellate judges are making far sweeping rulings with nobody questioning their authority to do so. The overreaching of the Judicial Branch has gone unchecked.
If there was an even number of Supreme Court Justices, no longer would just one individual have the extreme power they now have. If there was an even number of justices, no longer would we have five to four decisions with one individual having the power to dictate to an entire nation. Unchecked and undaunted power in the hands of an individual is no longer even an oligarchy, it becomes an autocracy.
With an even number of judges on the Supreme Court we would have to have a difference of at least two judges, or a five to three ruling, before the ruling would be looked upon as the “law of the land.” Unfortunately, the unfettered power that is the Supreme Court today would not have been abated, but the autocratic power would be removed and an oligarchy power would reign.
This was not the intent of the founders. It is clear their intent was to have three co-equal branches of government. Perhaps this would be a step toward restoring that equality. The Constitution does not require that the vacancy created by the death of Justice Scalia is even a vacancy. Let us not fill it and see if this puts a Constitutional check on the power of the Judicial Branch of government. The founders were very clear that it is we the people who are sovereign so it is our choice.