Justifications For Having Only Eight SCOTUS Justices Begins

I see that the rationales for not bothering to appoint a ninth justice to the Supreme Court are starting to appear, confirming my fears that Republican obstructionism on this issue may extend well beyond the next election.  Today's op-ed in the Times by Barry McDonald from Pepperdine Law School puts forth the argument that the Supreme Court made a power grab by becoming the "arbiter of all matters of constitutional law".  Rather, he argues, the framers' vision of the Supreme Court was to resolve disputes between individual parties over whether a federal law was constitutional, and that their decision would only be binding on the individual parties to that very lawsuit.  There would be no precedence set that would extend beyond that specific decision and any decision would certainly not be binding on the legislative or executive branch. His further point is that most decisions by the court are majority decisions so not having a ninth justice is not a problem. And the remaining cases that do end up in a 5-4 vote are usually politically contentious issues "decided by one unelected justice who straddled political voting blocs on the court". Furthermore, he states, letting those decisions be decided at the local level would allow us or even force us to govern ourselves.

Now I do not know Mr. McDonald and these may quite sincerely held beliefs as Pepperdine Law School has a reputation for conservatism.  But the idea that court decisions would only be binding on individual parties would eventually mean that the court would be overwhelmed by recurring cases that cover the same constitutional issue. And I think we all know how badly things went wrong when states were given broad latitude in clearly constitutional matters - it took a Civil War and continuing legal battles for well over 100 years simply to get the full franchise to African Americans. 

As I described in an earlier post, if the upcoming election produces a Democratic President and Republicans still maintain control of the Senate, there is very little incentive for Republicans to consider any nominee that the President puts forward.  And they will be using arguments like Mr. McDonald's  as a justification for their position.