No Need to Consider Judge Garland—An Eight-Member Court Can Work

Center for Vision and Values-With the death of Justice Antonin Scalia the Supreme Court is left with one chief justice and seven associate justices. President Obama has nominated Merrick B. Garland, chief judge of the D.C. Circuit Court of Appeals, who was a Clinton appointee and clerked under liberal Supreme Court Justice William Brennan. Even before the nomination, the vacancy produced urgent calls for a replacement to be nominated based on claims that an eight-person court would not be “fully functioning,” would “hamstring the judiciary,” and would amount to “partisan understaffing.” With Obama’s nomination of Garland, the clamor for immediate action will increase.

But is an eight-person Supreme Court really unworkable for the period between now and early 2017 when a newly-elected president will offer a replacement?

First, some history. Article III of the Constitution says that judicial power shall be vested in one Supreme Court and such other inferior courts as Congress shall ordain. It always came as a surprise to my Constitutional students that the size of the Supreme Court is not set at nine by the Constitution. In fact, the first Court was six-members —the chief justice and five associate justices. Between then and 1869, the Court was sometimes seven, sometimes 10, and sometimes nine. But the Judiciary Act of 1869 finally fixed the number at nine—one chief and eight associates. It has not changed since, with the best-known attempt at increasing its size being FDR’s unsuccessful “court packing” scheme in 1937.

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