The U.S. Supreme Court returned to work this month still short one justice. That doesn’t appear likely to change, at least not before Election Day and perhaps not before a new president is sworn in in January. In the meantime, having only eight justices continues to cause headaches, but a little history helps to put it all in perspective.
It might surprise some Americans to learn that the Constitution does not specify how many justices should serve on the nation’s highest court and that it has not always had nine of them. The original court had six justices. The number increased with the number of judicial circuits, reaching a maximum of 10 justices in the 19th century before Congress lowered the number back to nine in 1869.
There have been nine justices since then, except in the case of vacancies. President Franklin D. Roosevelt briefly tried to stack the court with 15 justices, but he failed.
Thanks to the refusal of Senate Republicans to do their job and confirm or deny President Barack Obama’s nominee to fill the vacancy left by the death of Justice Antonin Scalia, the court is gaveled in to its new term with an empty seat for the first time in decades.
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Scalia’s seat has been vacant for more than 200 days, and there is no end in sight. Most nominees have received a vote in less than half that time.
The Republican inaction is damaging the function of the court. The vacancy leaves eight justices. Eight is, of course, an even number, meaning votes can end in ties. Sure, back in its earliest days, the court had six members, also an even number, but its importance as the nation’s legal referee has grown tremendously since then.
With a tie vote, lower court rulings stand, even if they are contradictory. That means critical issues often remain unsettled. The law in states under one appeals circuit may be different from the law in other states.
Following Scalia’s death, the court handed down several major split decisions that left significant legal issues unresolved — about Obama’s immigration program, the Affordable Care Act’s contraceptive requirements and public-sector unions.
Going into the new term, the court seems hesitant to take on new cases that might result in a split.
The current ideological makeup of the court is evenly split between four conservative and four liberal justices — which is why Republicans are so adamant about blocking Obama’s nominee.
Never mind that Obama’s nominee, Merrick Garland, is not an ideologue and was actually cited as an example of a suitable consensus choice by Republicans prior to Scalia’s death. He would give the liberal wing of the court a majority, though probably not on as many issues as progressives would like.
Republicans could, if they chose, try to force through a bill to shrink the size of the court. If they thought eight was the right number, nothing prevents having that many, or seven or even just one.
That’s not really their goal, though. The current impasse is grounded in partisan politics, plain and simple.
The nation deserves a fully functioning Supreme Court, and Republican senators are abdicating that responsibility. In an upcoming editorial, we will consider what could and should happen next with Obama’s nomination.
Meanwhile, on Nov. 8, nearly a third of senators are up for re-election, including Kansas’ Sen. Jerry Moran and Missouri’s Sen. Roy Blunt, both Republicans. Voters should keep in mind which ones did their jobs and which ones refused.