Forum: Author Hangout

With multiple vacancies, how does Supreme Court operate?

PotomacBob 🚫

Early in "The Pelican Brief" by John Grisham, two Supreme Court justices met their deaths. The GOP leader of the Senate has been quoted as saying that if the GOP regains control of the Senate in 2022, he will refuse to even hold hearings - meaning no confirmation on any nominee from a Democratic president. I'm guessing that will now be SOP for both parties - no confirmation if the Senate is in different hands that the presidency.
That brings up the question - suppose there were multiple vacancies on the Supreme Court, say 3 or 4 vacancies, how would the smaller-member court operate? Would a 3-2 majority decide a case? Would it set a precedent? Would they still require 4 votes to consider a case?

Replies: Lumpy Michael Loucks Radagast

Lumpy 🚫

@PotomacBob

It continues to operate, but some decisions may tie, which means that by default the appellate branch decision holds, but can be re-appealed, since it wasn't decided one way or another.

We operated 1 justice short the last year of Obama's term, so it isn't unprecedented.

(yes, if a 3-2 decides it, then the court is decided, even if it wasn't a full court)

Replies: Dominions Son

Dominions Son 🚫

@Lumpy

It continues to operate, but some decisions may tie

The op specified multiple vacancies. The full court is an odd number as long as the number of open vacancies is even, ties wouldn't be an issue.

Replies: Lumpy

Lumpy 🚫

@Dominions Son

I mean, 3 vacancies would make it even again. He said supposed 3 or 4 vacancies, so it needs to be addressed.

Michael Loucks 🚫

@PotomacBob

That brings up the question - suppose there were multiple vacancies on the Supreme Court, say 3 or 4 vacancies, how would the smaller-member court operate? Would a 3-2 majority decide a case? Would it set a precedent? Would they still require 4 votes to consider a case?

The Constitution actually only specifies a Chief Justice. Everything else is by statute. In theory, a single justice could decide cases.

Replies: Lumpy StarFleet Carl

Lumpy 🚫

@Michael Loucks

We didn't even get 8 justices until the 1860s I think. It used to be lower, and changed several times since it first started.

Replies: Michael Loucks

Michael Loucks 🚫
Updated:

@Lumpy

We didn't even get 8 justices until the 1860s I think. It used to be lower, and changed several times since it first started.

Correct. It has been as low as five (the Judiciary Act of 1789 created five associate justices) and as high as ten. It was reduced to five in 1801 (to prevent Thomas Jefferson from nominating a justice and from ten to seven (in 1866) to prevent Andrew Johnson from making any nominations (sound familiar?). It was set back to nine a few years later, and it's been nine ever since.

Congress has complete control over the size, save they can't abolish it except by Amendment. That said, they could effectively reduce the size to 0 if they refuse to fill vacancies, and they never go into recess. At that point, the rulings of the Federal Courts of Appeals would be final.

Note - originally each justice wrote their own opinion, but that ended fairly quickly under John Marshall, when a single majority opinion was used to make the official ruling.

StarFleet Carl 🚫

@Michael Loucks

In theory, a single justice could decide cases.

Technically, to a certain extent that happens now. Cases that come in are assigned to a single judge and he can determine if it's worth booting up the chain. We really only hear about the ones that the full court gets - not the ones that get kicked back. Remember, if the Court declines to hear the case, then whatever the lower court ruling is stands.

Replies: Michael Loucks

Michael Loucks 🚫
Updated:

@StarFleet Carl

Technically, to a certain extent that happens now. Cases that come in are assigned to a single judge and he can determine if it's worth booting up the chain. We really only hear about the ones that the full court gets - not the ones that get kicked back. Remember, if the Court declines to hear the case, then whatever the lower court ruling is stands.

Yes and no. For those of us who follow the court, we watch the 'shadow docket' which is where grants and denials of cert occur, along with other actions.

For a case to be heard, it requires the vote of four justices. All petitions are circulated and clerks flag the ones that appear to have merit, and then the justices decide which cases to hear.

What you're referring to is the way emergency applications (e.g. for stays) work. They can be denied, granted, or referred to the full court for a decision. Under normal circumstances, no single justic can reject a cert petition.

Radagast 🚫

@PotomacBob

The rump Court can always be brought back into agreement with the permanent ruling party via a pillow (Scalia) or an adoption dossier (Roberts).
Circuit courts often have a tribunal of judges hear a case, and the decision's precedent holds for the circuit unless overturned by appealing to the whole panel of judges (enbanc) or SCOTUS. So a simple majority decision of the surviving SCOTUS justices would set precedent for the USA.
The corpse of Ruth Bader Ginsburg issued decisions while 'working from home' for two years, so precedent exists for the dead judges in your example to join the majority via hologram or Futurama head-in-a-jar. As long as their clerks who actually write the decisions are still alive the status quo would still exist.
The only hard and fast rules for SCOTUS are a) Yale or Harvard & b) Catholic or Jewish.

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Forum: Author Hangout

With multiple vacancies, how does Supreme Court operate?

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