The Late, Great Third Branch

Associate Justice Sonia Sotomayor said that “It’s much more difficult for us to do our job if we are not what we’re intended to be ― a court of nine.” For obvious reasons, an even number of justices creates a problem, as an even split results in a nullity, which means times was wasted and nothing accomplished. That we need a working Supreme Court doesn’t require much discussion. If anything, the argument is that the Supremes have done a crappy job of it for quite a while now.

But then, there’s history. The Supreme Court originally consisted of six justices, a chief and five associates. For the math challenged, that means that even splits were built into the system. Why? Who knows. Maybe it was to eliminate 4-3 splits, so that any position failing to achieve a plurality of an even court didn’t deserve to win. It’s not a bad idea, really. When interpretation of the Constitution swings on one vote, it’s hard to have a great deal of respect for the ruling.

In 1807, the number of justices was increased to seven. The number was increased again in 1837 to nine. In 1863, it rose to ten, then shrank back to seven in 1866 for the purpose of burning President Andrew Johnson. In 1869, the number rose to nine again, and that’s where it has stayed since. Much as the public believes that a court of nine is some sort of constitutional mandate, it’s untrue. On the other hand, it has become firmly established in practice and tradition.

Now, the Republicans have threatened to kill the court.

Maybe Sen. John McCain (R-Ariz.) had the right idea after all. Maybe Republicans are willing to trigger a constitutional crisis over the Supreme Court.

Some conservatives certainly seem to be warming up to McCain’s controversial suggestion last week that Senate Republicans should dig in their heels and block any and all Supreme Court nominees put forth by a future President Hillary Clinton.

Who needs a fully functioning Supreme Court after all?

We do, of course, but that’s not the right question.* The question is, if the Republicans follow through on their threat to refuse confirmation to any justice nominated by Hillary Clinton, even to the extent of letting the Supreme Court age out (or die off, as the case may be), what can be done about it?

When the question was whether the Senate had a duty to hold hearings on President Obama’s nominee, Merrick Garland, tons of nice folks engaged in flights of fantasy about ways to deal with it. That’s what’s great about this country, everybody has a brilliant idea without any substantive connection to reality. The answer was, unfortunately, that the Constitution lacks any means by which the Senate can be forced to do anything.

Cato’s Ilya Shapiro may not say the words you want to read, but that doesn’t make him wrong:

Well, let’s get one thing out of the way first: the Constitution is completely silent on all this. It’s the president’s job to nominate and the Senate’s to provide “advice and consent,” but there’s no further textual explication.

Similarly, if a majority of senators refused to confirm anyone to any offices, or pass any legislation whatsoever, that’s their prerogative. As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. I’m not sure such a position is politically tenable—barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president—but it’s definitely constitutional.

How could the Foundera have screwed up so badly? That’s a matter of whether you consider this a bug or a feature. Presumably, they figured the Senate would do its duty, whether because there was a sense of duty on the part of its members or because politics demanded it. Would the public tolerate a recalcitrant Senate? Would the senators who refused to do their job retain office? Would the public march on the Senate chambers with torches and pitchforks? After all, they elected a president, for better or worse, and that reflected the will of the people. What sort of Senate would refuse to respect the will of the people?

Today, the belief that the Supreme Court must have nine justices is deeply embedded in our national psyche and poor grasp of civics. But then, that same lack of understanding of law and politics allows the public to be manipulated by facile, shallow or even flagrantly false arguments.  The Supreme Court has been vilified as a blatantly political animal, and as such, has undermined the public’s faith in its one weapon, integrity.

In fairness, the justices haven’t done a whole lot to dispel the notion. When justices are busy giving ideologically-laden speeches, castigating (then apologizing for castigating) political candidates and espousing outcomes without cases before them, it does not lend itself to faith that the Court is anything more than a battleground for politics.

Even when the Court is fully staffed and putatively functional, the one-justice split on hugely controversial cases gives little faith that its work product reflects law. If it did, and if the justices were sufficiently impartial to give a fair hearing to all sides, would these nine brilliant jurists be incapable of at least a plurality decision, if not a unanimous one? If its decisions were to be deemed reasonable by the nation, how is it possible that four out of nine justices went the opposite way?

Obviously, we need a Supreme Court, for without it, law goes back to trial by combat after dissatisfaction with the first-level appeal. But the fact that a prisoner-of-war-hero senator has raised the specter of letting the Court die off, of effectively depriving an elected president of her constitutional authority to nominate justices of her choosing, raises the question of how far we’ve gone in politicizing everything, polarizing the Court to compensate for a non-functional Congress and using it to further either side’s radical agendas.

Whether we created, or merely allowed, this monster, this is the Court we now have. Maybe there was a time we, as a nation, would have believed we could do better, but there are no champions of moderation or integrity anymore. And this is what comes of America’s love of extreme positions.

There’s a good chance that McCain’s threat will not come to pass. That might be too much even for the crazies of this nation. But the problems giving rise to the failure of the Supreme Court to stand as honest broker of America’s disputes remains. And if the Supreme Court is no longer perceived as a court of integrity reflecting all of America, then it won’t be killed off by the Senate, but will commit suicide.

*Article I, Section 3, of the Constitution mandates the position of Chief Justice, to preside over impeachment trials. The Constitution does not mandate the existence of any other justices.

40 thoughts on “The Late, Great Third Branch

  1. jaf005

    If 9 is preferable, why not 51, one for each state and the District of Columbia.
    Personally , I lean toward the side that this is a feature not a bug, and I see the logic of eliminating single vote majorities. The Genie has been out of the bag for some time now, the court has become a political weapon and I don’t see that changing any time soon.

    Thanks for highlighting this issue, I have had more than one heated discussion about whether there is a constitutional mandate to have any specific number of SCJs

  2. PDB

    I believe that Supreme Court opinions should have at least seven justices in the majority for the decision to be precedential; otherwise, the ruling would simply be the law of the case. That way, a 5-4 decision (which, let’s face it, is mostly based on how many presidents are elected of a certain party) doesn’t have the massive effect that it currently has. So maybe a even number of justices, requiring at least a two justice majority, isn’t such a bad thing. I think that the Supreme Court of India operates in a similar fashion, an even number of justices hear each case so that any decision has at least a two justice majority.

    1. Jim Tyre

      The Supreme Court of India has 31 judges, that’s the ticket! (I’m too lazy, or too afraid of SHG yelling at me, to describe in detail what size any given panel will be. But it ain’t what you think.)

  3. B. McLeod

    The prospects for the court depend on public perception of its “moral authority.” The court has greatly weakened this in recent years by making up “law” from whole cloth and by concurrently turning a blind eye to abuses like “extraordinary rendition”.

  4. Richard G. Kopf


    This is a brilliant piece of writing. It makes extremely important points.

    Here’s my free (otherwise it would cost you ten cents) add on:

    Alexander Bickel long ago warned the Court to keep its head down and act as the “least dangerous branch.” Both the idealogues of the right and left who sit (and have sat) on the Court rejected Bickel’s caution. Being a Justice following Bickel’s dictum was not grand enough. As a result, the Justices are reaping the whirlwind that they stirred up.

    In the intermediate term, and no matter who the People elect as their Presidents, a partially neutered Supreme Court wouldn’t be the worst thing in the world. That, of course, assumes a divided government where one party controls the Senate and the other the Presidency. Keep the Court at eight until we can’t stand it anymore. Sorry to be unkind, but a few “strategic” deaths wouldn’t hurt either and shrinking the Court to less than eight would make the point even better. Maybe then potential Justices would be chastened and Brother Bickel would rise from the dead.

    All the best.


    1. Jonathan

      Judge, if I may take your comment as if addressed to the whole;

      There are some inherently political issues that courts can’t avoid. Especially when Congress isn’t functioning. For instance, the issue of the day seems to be executive overreach. It seems a mild dose of judicial activism is in order. Perhaps the path of judicial restraint is irresponsible at this moment. So, where to find the sweet spot between Lochner and Auer? Looking for it in a hot case isn’t a great place to start, but issues like the transgender guidance need to be decided sooner or later. Even a cautious decision striking it down, say finding it improper rulemaking under APA, is still going to look like a usurpation to the disappointed.

      Meanwhile, I read a piece today saying there is a sort of brain drain on the lower bench because qualified lawyers don’t want to go through the confirmation hassle for seats that used to be routinely and promptly approved. A neutered SCOTUS might chasten potential justices, but a neutered judiciary is a real problem.



      1. Richard G. Kopf


        You write:

        “Meanwhile, I read a piece today saying there is a sort of brain drain on the lower bench because qualified lawyers don’t want to go through the confirmation hassle for seats that used to be routinely and promptly approved. A neutered SCOTUS might chasten potential justices, but a neutered judiciary is a real problem.”

        I agree.

        All the best.


  5. Billy Bob

    The exact number on the Court is not the only problem. It’s just one problem. We like the number thirteen better. For reasons which escape us momentarily. You forgot to mention that FDR tried to pack the Court, which is the opposite of McCain’s implied proposal. After all, the Court really is a joke these days, with or without Nino. We’re surprised Saturday Nite Live has not picked up on it?

    The real failure of the Court, which does not seem to get much attention, is the fact that 97-98% of those seeking to be heard by the Court–aka “filing a petition”–are denied cert. You have “the right to petition the Court for redress of grievances against the Sovereign,” but apparently you do not have the right to be “heard”. It’s a farce in all reality. They lied to us in school. They lie to us in the law books. They lie to us on the Op-Ed page of THE Times. We’re in the camp with Andrew Jackson: We don’t pay the Court no nevermind. No mind, never matter. No matter, never mind!
    Come to think, letting the Court die off is not such a bad idea. The we could start over again, from scratch. We would rather have some computer program decide our cases than those idiots in black robes, especially the ones who write books. And if Jeffrey Toobin writes another book about the SCOTUS, we’re going vomit, and then set fire to it.

    Finally, you are *assuming* that Shillary is going to be elected. You, of all people, making false assumptions. Shillary is N0t going to be elected; and if she is, the Republicants are going to impeach her. There’s a roadside sign in our neighborhood: Hillary–Lies Matter. How do you like them apples. Just because we live in New England does not mean we’re all that libral. Ha. Some of us have seen and heard enough,… dONALD is riding a wave of discontent in the land, and enjoying every minute of it. God bless him!

      1. Billy Bob

        Oh really! If WHAT is satire, pray tell? We are unable to tell if you are serious or not! But thanx for tunin’ in, Kirk. Nice name anyhow. Anyone named Kirk is a friend of ours, trust it. There may be a role for you in Hollywood, produced by Clint WestWood.
        P.S., Is “satire” against “the law”? Inquiring Minds, First Amendment-breath!

  6. Thomas Downing

    There is an effective way to push the Senate towards responsible action, as you seemed to hint at; the vote. I’m not sanguine that even in the presence of an identifiable voter backlash against Senate failure to act, that this would reach to a better behaved Supreme Court.

    To achieve the last would require a sufficient percentage of the electorate to (at a minimum):

    1) pay attention to the Supremes beyond this or that hot news story
    2) Spend a fair effort in gaining a sound laypersons understanding of civics and law
    3) Read broadly such lawyers as write in a fashion accessible to the informed layperson.
    4) Research candidates for President and Senate
    5) Match the positions of candidates to Supremes felt to be ill-behaved
    6) vote according to their best assessment.

    In the less desirable alternative, find somebody who does the above, and speaks of it with defense of their position.

    Depressing, but it always comes back to a responsible electorate.

    PS. number 3) is a tip of the hat to Scott and others for performing this critical role. Thank you.

  7. Robert Davidson

    At the risk of escalating the tit for tat, if the executive branch were willing to abdicate its duties as well, it would have a multitude of levers that would cause the recalcitrant senators’ constituents to complain. Pulling those levers would turn basic government services into a political battleground too, but why should the judiciary have all the fun?

    1. SHG Post author

      I don’t really have a clue what you’re trying to say, and don’t care enough to spend time figuring it out, but figure I’ll post this comment to balance out the really good ones already posted.

      1. Robert Davidson

        If a president were to stop nominating judges for the District of Arizona, send AZ’s DHS border guard positions to CA, and start moving the Army Intelligence HQ and Network Enterprise Technology functions out of Fort Huachuca, these would be constitutionally permissible levers to pry McCain out of his obstructionist chair.

  8. Jim Tyre

    Obviously, we need a Supreme Court, for without it, law goes back to trial by combat after dissatisfaction with the first-level appeal.

    And what exactly is so wrong with that?

      1. Jim Tyre

        You do realize, don’t you, that you’ve just put yourself forward to be an SJW, doing combat for those who go beyond the first appeal?

        (Simple Justice Warrior, but no one will remember that, since you’ve made the other meaning of SJW so popular.)

            1. Patrick Maupin

              Trademark dilution. Lanham act violations. Product disparagement. I think he should hire Prenda Law.

              Then later, after the dust clears, he can hire Patrick Zarrelli.

  9. pavlaugh

    You’re probably right that people generally are unfamiliar with 28 U.S.C. 1, the statute requiring nine justices on the supreme court. It’s not just because of practice and tradition or the feelz that we have nine justices, but the law. So let’s make the people a little smarter on their civics. (Of course, we’re still left with the enforcement issue–problem or feature, given the politics of the moment.)

    1. SHG Post author


      The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.
      (June 25, 1948, ch. 646, 62 Stat. 869.)

      That’s not quite what it says. Nor does it provide a writ or remedy if it’s violated. And even if it did require something (which it doesn’t), it’s just a law. It can be changed, as it has been numerous times.

      1. Derek Ramsey

        If the law required nine justices, will an eight justice supreme court rule that the Senate overstepped its bounds and that only a supreme court of nine justices is legal? Irony would abound.

          1. Derek Ramsey

            I’ve never seen the movie, so I’m probably being mocked for complete stupidity. Fair enough. That’s what I get for ignoring the “pro tip”. My apologies.

  10. john Neff

    There were 26 Senators that were elected by their respective state legislators with no seniority or committees at the outset. The started with one standing committee (rules committee with 13 members) and a set of three member select committees. Under the circumstances it seemed like a reasonable plan.

    They have changed it many times and they can change it again if they want to. If they wanted too they could take confirmation away from the Judiciary Committee and assign it to a select committee or some other committee. Obviously they don’t want to.

    Chuck Grassley will be reelected due to the low caliber of his opponent.

    1. SHG Post author

      Committee assignments are big business. Huge business. How many lobbyist-paid vacations would be wasted if they started screwing with committee assignments? It would be a nightmare.

      Of course, if the Senate goes Dem, Grassley won’t be chair anymore. He’ll just be the grumbly old guy in the corner.

  11. Charles

    The simplest solution would be to take a line out of the Presentment Clause and insert it into the Advice-and-Consent Clause with appropriate modifications:

    “If advice and consent on any nomination shall not be returned by the Senate within ten Days (Sundays excepted) after it shall have been presented to them, the Nominee shall be Appointed, in like Manner as if the Senate had so advised, unless the end of the President’s term or other removal from office shall prevent its Return, in which Case it shall not be an Appointment.”

    The last time an amendment limiting Congressional power was ratified, it only took 202 years, 7 months, and 10 days, so I think we can have this problem fixed by 2218 or so.

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