By Russell Fagg
Ask the Judge 

Supreme Court Balance


The United State Supreme Court was established in 1789 by Article III of the Constitution. Originally there were 6 justices. In the 19th century, Congress adjusted this number down to five, up to seven, and then ten. In 1869, it was set at nine. In 1937, President Roosevelt tried to “pack” the court with pro New Deal members, and asked the number of justices be raised all the way to 15. This effort was defeated.

Since Justice Scalia’s death there have been two deadlocked cases, but both have been important. The first, United States v. Texas, affected 4 million people directly, and many others indirectly.

United States v. Texas

In June 2016, labor groups and civil rights groups asked the Court to reverse the decision which blocked President Obama’s immigration program. In United States v. Texas, the Court tied 4-4, which affirmed the lower court, blocking the immigration program which expanded eligibility standards for relief and expanded protection for undocumented immigrants from deportation. It is likely that Merrick Garland—President Obama’s nominee-- would have voted in favor of the President’s program, whereas if Scalia had been on the Court he likely would have voted against the President’s program. Scalia had written a scathing dissent in Arizona v. United States, extolling state sovereignty and referencing negative effects of immigration on Arizona residents. Regardless of which side you come down on in the immigration debate, it is without dispute the eight member court had an impact on this issue.

Friedrichs v. California Teachers Association

This case addressed the constitutionality of requiring public employees to pay fees to unions they did not want to join. This case was brought by a group of elementary education teachers, all non-union employees, who did not want to pay compulsory annual fees, which help cover collective bargaining efforts. The plaintiffs were hoping to overturn a 1977 ruling which allowed collecting fees from non-union workers in the 25 states that do not have right to work laws, including Montana. The 4-4 decision upheld the 1977 decision, meaning those fees still have to be paid. If Scalia had been alive, it probably would have been a 5-4 vote in favor of the Plaintiffs, changing the outcome.

The Future

President- elect Trump will for sure nominate one justice, to replace Justice Scalia, and may nominate one or two more—Justice Ginsburg is 83, Justice Breyer is 78, and Justice Kennedy is 80. Justices Ginsburg and Breyer are considered liberal justices and Justice Kennedy is considered a swing vote. In the long term, the next president’s biggest legacy will probably be his appointment(s) to the Supreme Court. Trump has pledged to appoint “new federalist” justices who believe the original intent of the constitution should be followed, including a heavy reliance on state’s rights and the rule of law—ideals which make sense to me.

In the end analysis, states, not the federal government, and certainly not an unelected Supreme Court, should be deciding most social issues of the day. The 10th amendment to the Constitution clearly says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

Judge Russell Fagg has been a State District Court Judge for nearly 22 years, and has handled over 25,000 cases during his tenure. Fagg is past President of the Montana Judges Association and served two terms in the Montana legislature.


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