A contrary but interesting take on the current Supreme Court by Barry McDonald, NY Times op-ed guest and Pepperdine law professor:
Eight Justices Are Enough
But it is not causing any real harm. Indeed, there is reason to think the opposite is true.
For one thing, 5-to-4 rulings, though not as rare as they used to be, are still not all that common. Some 80 percent of the court’s decisions in a given term typically consist of non-ideologically charged rulings on questions of statutory interpretation or other issues. In such cases, an eight-justice court operates just fine because majorities readily form.
It is only in the relatively small fraction of politically charged cases where the court may divide along ideological lines, frequently with the “swing justice,” Anthony M. Kennedy, choosing to join his conservative or liberal colleagues. Americans have learned to view these cases as central to the court’s role — which is why 4-to-4 deadlocks can seem dysfunctional. But we ought to ask ourselves whether deciding important cases in this manner is what the court should be doing.
Well might we ask. And if a case is so close that a 5-4 outcome would be the result, maybe forcing the Supremes to punt is just fine. Getting them back to following public opinion and Congressional action rather than leading it, as with Virginia v. Loving, might provide a nice break from the culture wars.
That said, a divided and indecisive Supreme Court empowers the lower courts, and we may have a plethora of split results coming from different regions. The California Ninth Circuit might finally create their own country with their own laws not endorsed elsewhere but not overturned by a 5-3 Supreme coalition which included a wandering liberal.
Oh, well - more Federalism faster!