# A Supreme Court what-if **URL:** \ **Category:** Factual Questions\ **Created:** [September 6, 2005, 3:39pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347 "2005-09-06T15:39:44Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 6, 2005, 3:39pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/1 "2005-09-06T15:39:44Z")
John Paul Stevens, as the senior associate justice, is currently the acting Chief Justice. Now what if Kerry or Gore or Clinton were President and wanted a liberal Chief Justice but was concerned about a nomination battle in a Republican Senate. Coult the President just nominate two people as Associate Justices and not submit a nominee for Chief Justice, leaving Stevens to continue as Chief Justice by default? Or not submit any nominations at all, figuring he had a better balance in the existing seven member court? What happens if the President refuses to submit a nomination for any post? Can the Senate force the issue? ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [September 6, 2005, 3:44pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/2 "2005-09-06T15:44:02Z")
> [@Little Nemo](#): > > John Paul Stevens, as the senior associate justice, is currently the acting Chief Justice. Now what if Kerry or Gore or Clinton were President and wanted a liberal Chief Justice but was concerned about a nomination battle in a Republican Senate. Coult the President just nominate two people as Associate Justices and not submit a nominee for Chief Justice, leaving Stevens to continue as Chief Justice by default? Or not submit any nominations at all, figuring he had a better balance in the existing seven member court? What happens if the President refuses to submit a nomination for any post? Can the Senate force the issue? The way the SC works is that there are eight Associate Justice seats and one Chief Justice seat. The president cannot nominate someone to a seat that isn’t vacant (or soon will be vacant - as in Sandra Day O’Connor’s case). So, the president can’t name two Associate Justice nominees because there is only one chair available. Zev Steinhardt ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [September 6, 2005, 3:45pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/3 "2005-09-06T15:45:11Z")
The President could not submit two nominations for Associate Justice because there are not two Associate Justice positions available. There is only one AJ spot and one CJ spot. (And the AJ spot is only because Justice O’Connor has promised to resign once her successor is confirmed; no other AJ has made a similar announcement.) ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [September 6, 2005, 3:54pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/4 "2005-09-06T15:54:06Z")
As for the other part of the OP, I don’t know of any requirement that the President submit a nomination or that the Senate could force one. It could be considered grounds for impeachment, I suppose. However, the Supreme Court would continue to function until it no longer had a quorum of justices. (Six, IIRC.) There have been many times in the past where through resignation, death, or illness it had less than a full slate. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [September 6, 2005, 4:03pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/5 "2005-09-06T16:03:45Z")
I think the president probably could leave the position of Chief Justice vacant and allow Assoc. Justice Stevens to continue to preside as Acting Chief. (Not exactly similar were Pres. Clinton’s installation of Walter Dellinger and Bill Lan Lee as Acting occupants of their positions in the Justice Department, as neither was going to be confirmed in the Senate.) –Cliffy ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [September 6, 2005, 4:04pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/6 "2005-09-06T16:04:29Z")
> [@Exapno Mapcase](#): > > As for the other part of the OP, I don’t know of any requirement that the President submit a nomination or that the Senate could force one. It could be considered grounds for impeachment, I suppose. > > However, the Supreme Court would continue to function until it no longer had a quorum of justices. (Six, IIRC.) There have been many times in the past where through resignation, death, or illness it had less than a full slate. Just so. And technically Stevens isn’t “Acting Chief Justice,” he is still the senior associate justice, exercising the administrative powers of the Chief Justice until the new CJ comes along. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [September 6, 2005, 4:36pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/7 "2005-09-06T16:36:03Z")
> [@friedo](#): > > The President could not submit two nominations for Associate Justice because there are not two Associate Justice positions available. There is only one AJ spot and one CJ spot. (And the AJ spot is only because Justice O’Connor has promised to resign once her successor is confirmed; no other AJ has made a similar announcement.) Minor nitpick: Mme. Justice O’Connor **has** submitted her resignation, effective on the confirmation of her successor. This has been common practice for justices in good health wishing to retire for many years, to “postdate” a resignation in order to assure the Court a full complement of justices, without a vacancy and potential tie votes, between the dates of resignation and confirmation. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [September 6, 2005, 5:14pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/8 "2005-09-06T17:14:32Z")
I sit corrected. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [September 6, 2005, 6:48pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/9 "2005-09-06T18:48:58Z")
If the President really wanted to get someone into the Chief Justice’s seat that had no chance at Senate confirmation, he could use a recess appointment. It’s a short term solution, as the appointment would expire at the end of the next Congressional session. I know that this has been used for AJs in the past, but I don’t know if a CJ has ever been recess appointed. ---
**Author:** ![brianjedi](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@brianjedi](https://boards.straightdope.com/u/brianjedi)\ **Post date:** [September 6, 2005, 7:14pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/10 "2005-09-06T19:14:22Z")
> [@flurb](#): > > If the President really wanted to get someone into the Chief Justice’s seat that had no chance at Senate confirmation, he could use a recess appointment. It’s a short term solution, as the appointment would expire at the end of the next Congressional session. I know that this has been used for AJs in the past, but I don’t know if a CJ has ever been recess appointed. At least two Chief Justices have been recess appointed: John Rutledge, by Washington in 1795, and Earl Warren by Eisenhower in 1953. ---
**Author:** ![robby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robby/32/11048_2.png) [@robby](https://boards.straightdope.com/u/robby)\ **Post date:** [September 7, 2005, 9:22pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/11 "2005-09-07T21:22:22Z")
Is there actually a fixed number of Supreme Court justices defined in the Constitution? If not, I fail to see how there can be a designated number of associate justice seats, as so many posters have asserted. (I seem to recall that the answer to my question is “no,” as there would have been no controversy when FDR tried to “pack the court” back in the Depression.) ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [September 7, 2005, 9:32pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/12 "2005-09-07T21:32:46Z")
> [@robby](#): > > Is there actually a fixed number of Supreme Court justices defined in the Constitution? If not, I fail to see how there can be a designated number of associate justice seats, as so many posters have asserted. The Constitution does not fix a number of seats, but it has been 9 since 1869. From Wikipedia: > [@](#): > > The Constitution does not specify the size of the Supreme Court; instead, Congress has the power to fix the number of Justices. Originally, the total number of Justices was set at six. As the country grew geographically, the number of Justices steadily increased. The court was expanded to seven members in 1807, nine in 1837, and ten in 1863. In 1866, however, Congress passed the Judicial Circuits Act, which provided that the next three Justices to retire would not be replaced; thus, the size of the Court would eventually reach seven by attrition. This law was passed by the Radical Republicans to deny Democratic President Andrew Johnson the ability to make any Supreme Court appointments. Consequently, one seat was removed in 1866, and a second in 1867. In 1869, after President Johnson’s retirement, the number of Justices was again set at nine (the Chief Justice and eight Associate Justices), where it has remained ever since. President Franklin D. Roosevelt attempted to expand the Court so that he could add Justices who would favor his New Deal policies; however, the plan failed in Congress. The Constitution provides that Justices “shall hold their Offices during good Behavior”; the term “good behavior” is interpreted to mean life. ---
**Author:** ![Neptunian\_Slug](https://avatars.discourse-cdn.com/v4/letter/n/ce7236/32.png) [@Neptunian\_Slug](https://boards.straightdope.com/u/Neptunian_Slug)\ **Post date:** [September 7, 2005, 9:37pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/13 "2005-09-07T21:37:07Z")
> [@robby](#): > > Is there actually a fixed number of Supreme Court justices defined in the Constitution? If not, I fail to see how there can be a designated number of associate justice seats, as so many posters have asserted. > > (I seem to recall that the answer to my question is “no,” as there would have been no controversy when FDR tried to “pack the court” back in the Depression.) The answer to your question is no. The number of justices is set by Congress and changed up until 1869. Its been nine ever since. I am not expecting it to change anytime soon. ---
**Author:** ![Bytegeist](https://avatars.discourse-cdn.com/v4/letter/b/9dc877/32.png) [@Bytegeist](https://boards.straightdope.com/u/Bytegeist)\ **Post date:** [September 7, 2005, 9:44pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/14 "2005-09-07T21:44:02Z")
> [@Colibri](#): > > The Constitution does not fix a number of seats [on the Supreme Court] … I suppose there’s nothing to stop Congress from setting the number of seats to one, or even zero. Let’s hope the idea never occurs to them. But hey, what if they were to set the number of seats to 290 million? Wouldn’t that be fun? _Everyone_ gets to be an Associate Justice! ---
**Author:** ![Neptunian\_Slug](https://avatars.discourse-cdn.com/v4/letter/n/ce7236/32.png) [@Neptunian\_Slug](https://boards.straightdope.com/u/Neptunian_Slug)\ **Post date:** [September 7, 2005, 10:08pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/15 "2005-09-07T22:08:50Z")
> [@Bytegeist](#): > > I suppose there’s nothing to stop Congress from setting the number of seats to one, or even zero. Let’s hope the idea never occurs to them. > > But hey, what if they were to set the number of seats to 290 million? Wouldn’t that be fun? _Everyone_ gets to be an Associate Justice! Nah, they would have to change the constitution to remove the ‘advise and consent’ clause. The average president has enough trouble getting the small number of judicial nominees through as it is. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 7, 2005, 10:52pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/16 "2005-09-07T22:52:05Z")
> [@Bytegeist](#): > > I suppose there’s nothing to stop Congress from setting the number of seats to one, or even zero. Let’s hope the idea never occurs to them. Congress could not set the number of justices of the Supreme Court at zero as it would have the effect of abolishing the Court. This would be in violation of Article III, section 1, which invests the judicial power of the United States in a supreme court. ---
**Author:** ![Bytegeist](https://avatars.discourse-cdn.com/v4/letter/b/9dc877/32.png) [@Bytegeist](https://boards.straightdope.com/u/Bytegeist)\ **Post date:** [September 7, 2005, 10:59pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/17 "2005-09-07T22:59:19Z")
> [@E-Diddy](#): > > Nah, they would have to change the constitution to remove the ‘advise and consent’ clause. The average president has enough trouble getting the small number of judicial nominees through as it is. Well, they’ll just have to streamline the approval process in the Senate. Vote people in in large blocks at the end of every month or something. Start with census records, and city and municipal phone books, then switch to hospital birth records after the initial fill-up. Yeah, man — _290 million_ justices on the Supreme Court. That would really put the **check** into “checks & balances.” Watch out you other, puny branches of government! Me, I want my black robe. Can’t wait for it. Don’t you want a black robe? Will you wear yours all the time, like I will, or only when you’re writing decisions? Me, I’m going to _sleep_ in mine. Not shower in it though. _That would de-value the office._ ---
**Author:** ![Bytegeist](https://avatars.discourse-cdn.com/v4/letter/b/9dc877/32.png) [@Bytegeist](https://boards.straightdope.com/u/Bytegeist)\ **Post date:** [September 7, 2005, 11:11pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/18 "2005-09-07T23:11:58Z")
> [@Otto](#): > > Congress could not set the number of justices of the Supreme Court at zero as it would have the effect of abolishing the Court. This would be in violation of Article III, section 1, which invests the judicial power of the United States in a supreme court. Yes, as soon as I submitted that post, I imagined the obstacle would be along those lines. Silly me. Back to seriousness, if briefly. Is it still true to say that: (a) Congress could reduce the number of justices to one, merely by passing a bill like the last one in 1869 (and others before); and (b) abolishing the Supreme Court entirely would require passing a constitutional amendment? I realize both of the above are outrageous changes and highly unlikely. These are just hypothetical questions. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [September 8, 2005, 1:33pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/19 "2005-09-08T13:33:16Z")
> [@Bytegeist](#): > > Is it still true to say that: (a) Congress could reduce the number of justices to one Probably. The make-up of the Supreme Court is within Congress’s purview, just not its existence. One might make a couple contrary arguments, the best in my mind being that the Framers had a general idea of what a high Court would be like because of their knowledge of the English courts of the time, such as the Courts of King’s Bench and Common Pleas, and those courts all had multiple judges under a Chief Judge/Justice. (The position of Chief Justice being mentioned elsewhere in the Constitution.) Of course, the counterargument is that the Framers obviously rejected some aspects of the English common law system by ensuring that one U.S. court was to be supreme – the important English courts of the time (King’s Bench, Common Pleas, Ct. of Exchequer, Ct. of Chancery, Old Bailey, and about a million other minor ones) suffered from constant turf wars because they all had overlapping jurisdiction. Maybe the Framers didn’t care if the Supreme Court looked anything like the Court of King’s Bench, just so long as there was one definitive place where the buck stopped. > [@](#): > > (b) abolishing the Supreme Court entirely would require passing a constitutional amendment? Indubitably.\* The Constitution demands the existence of a Supreme Court. \*Well, you could avoid a Constitutional Amendment in a few ways such as a Revolution or the 86’ing of the Constitution as the country’s organic law like we did with the Articles of Confederation in 1789, but assuming the Constitution remains in force, there must be a Supreme Court. One other interesting point about the size of the Court – because federal judges are guaranteed lifetime appointments, if Congress were to limit the size of the Court to 1 person, it wouldn’t be effective until the death or retirement of all the other justces. (Or their Impeachment.) –Cliffy ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [September 8, 2005, 2:42pm UTC](https://boards.straightdope.com/t/a-supreme-court-what-if/320347/20 "2005-09-08T14:42:18Z")
> [@Cliffy](#): > > \*Well, you could avoid a Constitutional Amendment in a few ways such as a Revolution or the 86’ing of the Constitution as the country’s organic law like we did with the Articles of Confederation in 1789, but assuming the Constitution remains in force, there must be a Supreme Court. Or, you can do what Jake Featherstone did to the Confederate Supreme Court in Harry Turtledove’s alternate-history: He just simply didn’t provide any funding for it Zev Steinhardt [Next page](https://boards.straightdope.com/t/a-supreme-court-what-if/320347.md?page=2)