Constitution Daily

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Constitution Check: Could the Supreme Court handle a long-term vacancy?

October 19, 2016 by Lyle Denniston


Lyle Denniston, Constitution Daily’s Supreme Court correspondent, looks at how the Supreme Court may be confronted with a more challenging situation if its current vacancy continues through the term that runs through late next June.


“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.  This is why we need the majority [in the Senate], so we can make sure there is not three places on the United States Supreme Court that will change this country for decades.”

640px-Inside_the_United_States_Supreme_Court– Excerpt from remarks by Republican Senator John McCain, of Arizona, on Monday in an interview on the Philadelphia radio show on station WPHT-AM, the “Dom Giordano Program.” Later Monday, Rachael Dean, a spokeswoman for the senator, told reporters that he “will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against any individual based on their qualifications.”

“This isn’t exactly a surprise, but it is an existential threat to the Supreme Court itself – and, ultimately, to the rule of law. If Republicans rig the Supreme Court in this way, so that only Republicans get to name Justices, then what possible reason does a Democratic governor or a Democratic president have to obey the court’s decisions?...This is a dangerous future.”

 – Excerpt from an online commentary on Senator McCain’s remarks, titled “The cat is out of the bag,” by Ian Milhiser, senior fellow at the liberal advocacy group, the Center for American Progress.


The Constitution creates “one Supreme Court,” and current federal law specifies that it can do its work if it has no fewer than six Justices.  There is no way it can reach down to a lower court and “borrow” a judge to help it obtain a quorum to decide a given case for which six Justices are not available.  Lacking a quorum for a case, it actually has to simply stand aside and let stand the lower court decision that is at issue, according to a federal law.

From those limitations, it is obvious that the court cannot take any action to fill up its bench when there is a vacancy – as at present, with the death in February of Justice Antonin Scalia and the refusal of Senate Republican leaders to consider the nominee to replace him, Circuit Judge Merrick B. Garland.

With only eight Justices, the court has found itself dividing 4-to-4 in a few cases, including some important ones, and it has acted more cautiously on taking on major new controversies that may lead to an even split.  A 4-to-4 split has the effect, just as when the court lacks a quorum of six, of simply making final the decision of the lower court that is before it.  There is no binding precedent in that situation, so the development of law gets stymied.

The court operated through more than three months of its last term with only eight members, and it has gone through the first month of its new term with that number.  There is, at present, no sign that it will be joined by a ninth Justice any time before the early months of 2017, at the earliest.

The court may be now be confronted with a more challenging situation if that vacancy continues through the term that runs through late next June, and beyond, perhaps for the entire first term of the new president.  That could follow from the suggestion on Monday by Republican Senator John McCain that a GOP-led Senate would refuse to confirm any Supreme Court nominee, if Democrat Hillary Clinton were to become president.

That idea represents an escalation of the current Republican senatorial position on the present vacancy.  Previously, GOP leaders had said that Scalia should be replaced by the president to be chosen on November 8.

Of course, if the McCain scenario were to play out, the court would not shut down.  The present Justices would continue serving as long as they are able to do so, but would be required to do even more adjusting than they have so far to reach compromises in the most difficult and important cases, and they almost certainly would turn aside even more such cases rather than risk a string of 4-to-4 splits.

But assume that the older members of the court were unable to continue, or that they began departing – voluntarily or otherwise—one by one.  The court might find itself fairly soon risking the loss of its quorum.  Justice Ruth Bader Ginsburg, the eldest, is 83 years old.  Justice Anthony M. Kennedy will be 80 in July.  And Justice Stephen G. Breyer will be 78 in August.  Senator McCain on Monday referred to three potential vacancies (including the seat of the late Justice Scalia), but if the oldest of the sitting Justices left the court, the bench would be down to five members.

That circumstance, should it develop, almost certainly would produce a constitutional crisis.  The Constitution does anticipate that there would be a court at the top of the federal judicial hierarchy, and it thus assumes that it is necessary to have a final arbiter of the law.  The court itself, of course, has operated on that assumption since 1803, when it declared it to be the court’s duty to “say what the law is.”   Short of constitutional amendments, the court has the last word on the Constitution’s meaning.

Congress could react to such a crisis by reducing to five the number to make a quorum, and that would be a solution, of sorts.  If the Republicans were holding fast to an agreement to block any Clinton nominee to be Justice, they would have a court (assuming the departure of Ginsburg, Kennedy and Breyer) dominated by three conservatives (Chief Justice John G. Robert, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas), with liberal Justices Elena Kagan and Sonia Sotomayor in isolated dissent, at least on major cases.

Leaving aside the argument (made by commentator Ian Milhiser, quoted above) that the Republican maneuver to save seats on the court for a future GOP president would so discredit the court that its decisions might not be obeyed by Democratic officials, the crisis of confidence for the general public would very likely be profound.  The court would have been quite thoroughly – and intentionally—politicized, and its image would be that of a Republican-rigged tribunal, with the specific aim of generating rulings acceptable to the GOP policy agenda.

Partisan polarization would then, definitely, have spread all across the national government.  Was that the vision of James Madison and Alexander Hamilton?


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