The Supreme Court REQUIRES Nine Justices; Don’t Let Republicans Convince You Otherwise


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Republican pundits and Senators (like John McCain and Ted Cruz) recently have shown their hand and stated that they may not consider confirming any justice nominated by a Democratic President — and their principal argument in defense is that “there is no requirement that the Supreme Court have nine justices.”  For example, Ted Cruz recently asserted:

Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was “precedent” for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.

“You know, I think there will be plenty of time for debate on that issue,” said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

The Republican argument here is wrong.  While it is true that the Constitution does not prescribe the precise number of Justices required to sit on the Supreme Court, a longstanding federal statute  (dating to the Judiciary Act of 1869) does, and sets the mandatory number as one Chief Justice and eight associate justices:

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.  (28 U.S.C. 1)  

Note also that the statute provides that the Supreme Court “shall” consist of 9 justices, and “shall” is considered mandatory in legal terms.  (The Republicans would incorrectly re-write the statute as “may consist” of up to 9 justices.)  The distinction is important. For example, when FDR tried to increase the number of justices through his “court packing” plan, he needed to try to get Congress to amend the statute to allow more justices.  Similarly, when our country has had less (or more) than 9 Supreme Court justices, the lower (or higher) number was in each instance authorized through amended statutes: (1789 (six), 1801 (five), 1802 (six), 1807 (seven), 1837 (nine), 1863 (ten), 1866 (seven) and 1869 to today (nine)).

So, if Republicans want a Supreme Court with less than nine justices, they have to pass an Amended Judiciary Act and have President Clinton sign it.  Republicans cannot, lawfully, simply decide to have less than 9 Supreme Court justices.

The above point is important because Republicans already are trying to convince the public and the press that they are legally allowed to ignore appointing justices during a Democratic presidency.  The Republican argument is wrong and, as in many other cases, they are advocating lawless behavior.

*/  Despite the above, there will be tricky issues as to how to enforce 28 U.S.C. 1 if Republicans decline to confirm a 9th (or, later, 8th and 9th) justice.  It is reasonable to assume though that the Supreme Court – a third co-equal branch – is not going to lightly take one chamber of Congress illegally trying to cripple the Court’s power.  Nonetheless, the Supreme Court lacks the power-of-the-purse and the power-of-the-sword.  My reasoned guess is that if Republicans don’t back down, then as a matter of principle all of the Democratic appointed justices, and hopefully all of the justices, will refuse to meet so as to constitute a “quorum.”  In effect, the Supreme Court will tell Republicans and the country, either you give us a full court or you have no court at all. Obviously, it would be idiotic and dangerous in the extreme for Republicans to force such a confrontation.


Reprinted with permission from Daily Kos