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.