Wikipedia says:

Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.

A German TV news channel said that the recent election could even impact the voting results of the supreme court, because one party can numerically dominate the other.

Of course the political view can have different excesses and asking like "should a extreme conservative justice be balanced by two shlight liberal persons?" doesn't make sense at all. Therefore, an even balance is not possible.

But still, i'm wondering why the US supreme court is not balanced even in a simple way like 5 left wing justices and 5 right wing justices.

EDIT I'm also aware of the problem of finding a decision, but i think a numerically uneven supreme court is the wrong approach.

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    A lot of the world looks at the entrenchment of politics in your supreme court as being the real wrong approach. the fact that the outcome positions of the entire court can almost always be foretold just by looking at the subject matter of a case says that it is a court of private opinion - not of proper, dispassionate legal interpretation. Commented Mar 16, 2016 at 19:15
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    It sounds bad, but remember all justices are vetted by congress. There are political leanings, but they're not extreme. And, ultimately, these are people respected by all parties (at least, respected enough to reach tha pinnacle in their legal careers).
    – user1530
    Commented Mar 17, 2016 at 9:21
  • As a sidenote, while not actually judging by there supposed political views, the judges of the german correspondent, the constitutional court [Verfassungsgericht], are proposed by the parties of the parliament according to the number of their mandates. There is no law allowing it, it's even problematic looking into the constitution, but it is how it's done. Commented Mar 17, 2016 at 23:24
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    @MichaelBroughton - the problem is that the Constitution is frequently broad/vague enough that there's no single "dispassionate legal interpretation" that is unambiguous. And then how a justice interprets is is informed by their own views and opinions. The whole thing should be scrapped and re-written in Perl.
    – user4012
    Commented Mar 18, 2016 at 14:49

2 Answers 2


How would you write a law which enforces political positions of judges to be representative? Political orientation isn't something you can objectively measure. Especially because there are much more axis' than just "left" and "right" which can be used to differentiate politicians.

And as long as there is no way to do so, choosing the judges must be done by people, and people will always be biased to put persons in power they agree with.

The reason why the United States have decided for an uneven number of judges is because it avoids ties (although it doesn't completely prevent them because judges can abstain). A tie in a supreme court decision confirms the decision of the lesser court, but doesn't set a precedence for future cases. But the whole purpose of the supreme court is to do exactly that: solve tricky constitutional corner-cases by speaking the final word and thus generating legal certainty. This means that in case of a tie the supreme court fails to fulfill its purpose and instead leaves the matter in legal limbo. An uneven number of judges makes this unsatisfying outcome much less likely.


Why is the Supreme Court not balanced in terms of their political views?

It is. The court is currently split with two reliable conservatives, two conservative-leaning swing votes, and four liberals. That's what you wanted, right? An even split between right wing and left wing?

It's worth noting that at one time (1995-2004), all but two justices on the Supreme Court were appointed by Republicans. Of those Republican appointees, four were considered swing voters at some level (John Paul Stevens, David Souter, Sandra Day O'Connor, and Anthony Kennedy). At the time of their retirements, Stevens and Souter were considered reliable liberal votes.

I'm not sure that you appreciate the difficulties that occur with tied decisions. They essentially leave the lower court rulings in place. This means not only that different parts of the country may effectively have different law (the lower courts are regional), but that the law may be determined by which court happens to hear the case first. While lower court rulings are not binding on other courts, they are still citable in other decisions in the absence of binding precedent.

Yes, you could make different tie resolution systems. The problem is that most of them are worse. For example, if the default is to favor the defending party, then you might see anti-abortion lawyers taking the pro-abortion side in a case hoping for a tie that would give the anti-abortion side the effective win. Pro-abortion lawyers would then try to maneuver so that their case taking the anti-abortion side as the plaintiff would come up first.

The situation is not as extreme as it may seem. Replacing Antonin Scalia with a more liberal candidate doesn't necessarily make that person determine the voting result. Instead, it shifts the median vote from Kennedy (or John Roberts) to Stephen Breyer. If Merrick Garland were confirmed, he might become the median vote. But that's because he is one of the more moderate potential justices.

It's also worth noting that while the most controversial decisions are often decided 5-4 with conservatives on one side and liberals on the other, that most decisions have different balances. A fair number of decisions are unanimous. Some decisions have alternate balances like the 5-4 decision in Cherokee Basin v. Owens that had Elena Kagan voting with Clarence Thomas and Samuel Alito voting with Sonia Sotomayor. Note that while Thomas and Sotomayor have the lowest likelihood of voting together in the current term, they still vote together 50% of the time.

Source: http://www.scotusblog.com/statistics/

And that obscures things somewhat. There are many areas on which the members of the Supreme Court are in agreement but on which they never rule. If there is no lower court disagreement, the Supreme Court can just leave the lower court rulings in place. So Supreme Court cases are already controversial and they still ended in unanimous decisions thirty out of seventy-four times in 2014. That's more than the nineteen decisions that ended 5-4.

And the truth is that until the 1980s, Republicans were as likely to appoint liberal justices as Democrats. Gerald Ford appointed Stevens. Richard Nixon appointed Harry Blackmun. John F. Kennedy appointed conservative Byron White. As late as 1990, George H. W. Bush appointed liberal Souter. Conservatives aren't exactly happy with the performance of George W. Bush appointee Roberts. Translate that to your evenly divided court and your 5-5 tie turns into a 6-4 left wing advantage.

If even the nominating presidents can't determine if the candidate is left or right wing, then how do you expect someone else to do so?

  • You seem to be writing this in the aftermath of the death of Justice Scalia. But that would seem to make Anthony Kennedy one of your "conservative-leaning swing votes". In what universe can Anthony Kennedy be considered a conservative?
    – Kyralessa
    Commented Mar 28, 2016 at 2:55
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    In one where you look primarily at his 5-4 decisions that fell on a partisan division over his entire career. Or just look at the first Obamacare case. Kennedy was in the conservative minority. Or Bush v. Gore. Or Citizens United. While Kennedy's rulings on gay rights are not well regarded by conservatives, he is far more likely to vote with the conservative bloc than even the most moderate liberal. He's a swing vote. He can vote either way. Historically he's voted more often with conservatives.
    – Brythan
    Commented Mar 28, 2016 at 3:40
  • Perhaps another way to put it would be this: It seems that the more it mattered in a given case (to both sides) whether Kennedy leaned conservative, the less likely he was to do so.
    – Kyralessa
    Commented Jun 26, 2022 at 7:38

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