As debate continues about the president’s eventual nomination to the Supreme Court — or, more specifically, as the President’s proponents inside and outside the Senate grind their teeth over the fact that the Constitution doesn’t actually require the Senate to spring into action when the President announces which liberal judicial activist he wants to appoint as Justice Scalia’s replacement — the Court itself continues to do its work.
And a new report issued by the Congressional Research Service highlights ways in which the Court can easily adjust to the new reality of having eight members instead of nine. (Like all CRS reports, this was not immediately released to the public upon its completion. But like many CRS reports, it eventually found daylight.)
The report begins by reiterating the basic facts of election-year appointments to the Court, facts that tend to be extremely inconvenient for those who believe the Senate absolutely must race to act on the President’s nomination. The report reminds that there is nothing inherently bad about having an even number of Justices: Congress originally created the Supreme Court as having six justices; and at one point it even had ten. And of course the Court often operates with an even number of voting Justices, when one has to recuse himself.
The CRS report also reiterates how rare it is for the President and Senate to fill a vacancy that arises during an election year:
It should be noted, if only as a tangent, that the CRS report could have added some color on this point, on how much the 1932 appointment differs from anything President Obama might attempt today.
In 1932 President Hoover replaced Holmes with Cardozo, the man largely regarded as the best judge in the country. Hoover appointed him despite the fact that he knew Cardozo didn’t share his political views — indeed, when he gave Senator William Borah a list of prospective nominees, Cardozo was the last name on the list, to which Borah replied, “Your list is all right, but you handed it to me upside down.” When Hoover ultimately relented and nominated Cardozo, the confirmed him unanimously within days, as described in Henry Abraham’s seminal book, Justices, Presidents, and Senators.
The New York Times reported that “seldom, if ever, in the history of the Court has an appointment been so universally commended.” One suspects that President Obama will nominate someone with far less universal acclaim, setting the Senate up for a year-long stalemate.
In the meantime, the Court continues its work. If a case leaves the eight justices deadlocked 4-4, then the normal result is to issue no opinion for the Court and instead leave the lower court’s decision intact. (Thus, a deadlocked Court would leave the Fifth Circuit’s immigration policy injunction intact, but by the same token would also leave intact the lower courts’ decisions refusing to recognize religious exemptions to Obamacare’s contraception mandates.)
But, as the CRS report explains, the Court could also decide to hold a case back for re-argument, in order to decide the case with a slate of nine judges.
Yet there is another tool available to the Court, one that the CRS report regrettably leaves unmentioned: The Court could choose to rearrange its argument schedule within a given Term, in order to hear first the simpler cases unlikely to cause a 4-4 deadlock, and save for later the cases that might require a ninth justice’s tie-breaking vote.
This last option — management of the Court’s calendar — is less relevant to the current Term, where the Court is almost finished hearing cases. But this option could prove extremely important in the autumn, when the Court begins hearing cases again.
The Court exercised this case-management discretion in 1971, a year that found the Court winnowed to just seven Justices after the abrupt retirements of Justices Harlan and Black. As Bob Woodward and Scott Armstrong report in The Brethren, “the Justices realized the Court might be short-handed for some time if there were protracted confirmation battles,” and so they responded accordingly. Capital punishment cases scheduled for the new Term’s first day were deferred, since “such cases would require a full nine-man court.”
In fact, the Court’s 1971 approach only briefly described by Woodward and Armstrong gets a much more detailed treatment from . . . Linda Greenhouse, in her favorable biography of Justice Harry Blackmun:
Of course, the Committee misfired when it marked Roe v. Wade as an “easy” case, under the assumption then that the case would be dismissed for lack of consideration. (And in fact, Roe was subsequently re-argued after the appointments of Justices Powell and Rehnquist filled the two vacancies.) But the Court’s decision to manage its caseload, in order to defer difficult cases, became something of a precedent.
In fact, Greenhouse further reported in her book, a decade later Justice Blackmun urged the Court once again to manage its docket during another extended vacancy, the Democrats’ legendary wars on Reagan’s last nominees, Robert Bork and Douglas Ginsburg:
To be clear, Greenhouse is now officially an opinion columnist (and not just an unofficial one, as during her time as the Times‘s Supreme Court correspondent), and she recently criticized the Senate’s lack of interest in racing to act on Obama’s eventual nominee, in an email to David Brock’s “Media Matters” blog.
But her reporting in the Blackmun book reminds us of yet another reason why a Supreme Court vacancy is far less problematic than the President’s supporters suggest: Chief Justice Roberts and his colleagues are more than capable of managing their own docket to save particularly difficult cases for later.
Adam J. White is a visiting fellow at the Hoover Institution.
