# From a legal POV, can the republicans just leave the supreme court seat vacant until 2021+ **URL:** \ **Category:** Factual Questions\ **Created:** [February 24, 2016, 4:28am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950 "2016-02-24T04:28:42Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [February 26, 2016, 3:45am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/61 "2016-02-26T03:45:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Most SCOTUS conservatives would be perfectly happy to see the power of the Supreme Court reduced. There are certainly exceptions, but the Court has historically functioned as a a check on conservative legislation far more than liberal legislation. It would only take one. Roberts was widely seen in the ACA decision to be putting the future standing of the court above partisan considerations and even, arguably, above his own legal reasoning and judicial philosophy. As the Chief Justice his opprobrium would carry extra weight, and as a younger Justice, if he were to threaten resignation, it would be impossible to spin it as a personal decision. I doubt that it will come to that, but if he he had to choose between being remembered as the Chief Justice who saw his court turned into a judicial tontine and toy of the political parties or stepping down in protest, I think it’s quite possible that he would choose the latter. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 26, 2016, 4:07pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/62 "2016-02-26T16:07:32Z")
The current Supreme Court is functioning just fine. Some of the Justices, or all of them, have seen an increase in their workload but nothing they can’t handle. Life, and judicial review, goes on. ---
**Author:** ![digs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/digs/32/14889_2.png) [@digs](https://boards.straightdope.com/u/digs)\ **Post date:** [February 27, 2016, 2:02pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/63 "2016-02-27T14:02:16Z")
So… you’re saying “Hey, my car’s doing fine on three wheels as long as no one sits in the right rear seat. So I shouldn’t make any plans to get a fourth wheel.”… ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 29, 2016, 4:16pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/64 "2016-02-29T16:16:21Z")
> [@digs](#): > > So… you’re saying “Hey, my car’s doing fine on three wheels as long as no one sits in the right rear seat. So I shouldn’t make any plans to get a fourth wheel.”… > [@doorhinge](#): > > The current Supreme Court is functioning just fine. Some of the Justices, or all of them, have seen an increase in their workload but nothing they can’t handle. Life, and judicial review, goes on. Ahem, I’m saying that the current Supreme Court is functioning just fine. I have no idea what’s wrong with your car. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 29, 2016, 6:14pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/65 "2016-02-29T18:14:42Z")
> [@doorhinge](#): > > The current Supreme Court is functioning just fine. Some of the Justices, or all of them, have seen an increase in their workload but nothing they can’t handle. Life, and judicial review, goes on. Talk about invoking a certain Monty Python and The Holy Grail bit…You just did it without thinking. “Lemme at him!” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 29, 2016, 6:32pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/66 "2016-02-29T18:32:43Z")
> [@doorhinge](#): > > Ahem, I’m saying that the current Supreme Court is functioning just fine. And your evidence for this assertion is what, exactly? The Supreme Court is apparently in dire straits because [Thomas has actually started talking during oral argument](http://www.cnn.com/2016/02/29/politics/supreme-court-clarence-thomas-10-year-streak-question/index.html). ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 29, 2016, 6:58pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/67 "2016-02-29T18:58:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > And your evidence for this assertion is what, exactly? The Supreme Court is apparently in dire straits because [Thomas has actually started talking during oral argument](http://www.cnn.com/2016/02/29/politics/supreme-court-clarence-thomas-10-year-streak-question/index.html). Thomas speaks and you think the sky is falling. Dire straits? Seriously? The LSM seems to be stunned that Justice Thomas spoke. From the bench? In public? OMG! When considering cases, the Justices have at their disposal the original case files, the related appellate case files, the writs of certiorari, any amicus briefs, and the Justice’s discussion while in Justices’ Conference. The Justices have all of the information they need to decide a case. The oral argument part of the process is the least useful part of the whole process. IMHO, of course. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 29, 2016, 7:02pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/68 "2016-02-29T19:02:21Z")
> [@doorhinge](#): > > Thomas speaks and you think the sky is falling. Dire straits? Seriously? > > The LSM seems to be stunned that Justice Thomas spoke. From the bench? In public? OMG! > > When considering cases, the Justices have at their disposal the original case files, the related appellate case files, the writs of certiorari, any amicus briefs, and the Justice’s discussion while in Justices’ Conference. The Justices have all of the information they need to decide a case. The oral argument part of the process is the least useful part of the whole process. IMHO, of course. “LSM” again? Why don’t you just start a post with “disregard everything I’m saying?” It has the same effect. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 29, 2016, 7:30pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/69 "2016-02-29T19:30:14Z")
> [@doorhinge](#): > > The oral argument part of the process is the least useful part of the whole process. IMHO, of course. So how many cases have you argued before SCOTUS? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 29, 2016, 7:45pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/70 "2016-02-29T19:45:41Z")
> [@Procrustus](#): > > “LSM” again? Why don’t you just start a post with “disregard everything I’m saying?” It has the same effect. Yes, it’s that same LSM again. The very same LSM who are astounded to hear a black Justice speak in his own court. Shocking, absolutely shocking. :smack: ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 29, 2016, 8:43pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/71 "2016-02-29T20:43:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > So how many cases have you argued before SCOTUS? So which part did I get wrong? Are you suggesting that I do not have standing to discuss this issue on an internet forum? Or are you just attacking the messenger? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 1, 2016, 5:18pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/72 "2016-03-01T17:18:24Z")
I’m just curious about your qualifications for discussing the relative weight of oral argument. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 1, 2016, 5:45pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/73 "2016-03-01T17:45:37Z")
Here we have[the opinion of a few people of authority](http://www.nytimes.com/2012/05/06/sunday-review/are-oral-arguments-worth-arguing-about.html) on the relative value of oral argument. Thomas, Roberts, and Ginsburg: > [@](#): > > In an interview with Bryan A. Garner published in 2010 in The Scribes Journal of Legal Writing, Justice Clarence Thomas was asked how often he changed his mind thanks to oral arguments. > > “Almost never,” he said, adding that they may make a difference for his colleagues “in 5 or 10 percent of the cases, maybe, and I’m being generous there.” > > That is as it should be, said Mr. Estrada, who has argued 20 cases before the Supreme Court. > > “Somewhat refreshingly to our citizens,” he said, “the administration of justice has to do with the merits of the case and not entirely to do with the skill of the advocates.” > > Chief Justice John G. Roberts Jr., who argued 39 cases in the Supreme Court before joining it, told students at Columbia Law School in 2008 that lawyers play a relatively minor role in that highly stylized discourse. > > “Quite often the judges are debating among themselves and just using the lawyers as a backboard,” he said. “One of the real challenges for lawyers is to get involved in that debate.” > > Oral arguments are in any event far less important than the written briefs. > > “Of the two components of the presentation of a case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg told Mr. Garner. “It’s what we start with; it’s what we go back to.” ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 1, 2016, 6:00pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/74 "2016-03-01T18:00:14Z")
5%-10% of the cases would be a huge number! I mean, how many cases do you think are affected by the briefs? I would guess that more than 60% are unaffected by the merits briefing. So if briefing and oral argument are sharing 40%, and oral argument takes up as much as 10%, that’s a pretty big deal. Imagine if a justice said he didn’t bother to read the briefs because they only affect his decision 10% of the time. Don’t you think he or she would be ridiculed? ---
**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:** [March 1, 2016, 6:08pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/75 "2016-03-01T18:08:18Z")
> [@doorhinge](#): > > The LSM seems to be stunned that Justice Thomas spoke. From the bench? In public? OMG! **Moderator Note** **doorhinge** , knock off the LSM nonsense. No warning issued. Colibri General Questions Moderator ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 1, 2016, 6:15pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/76 "2016-03-01T18:15:12Z")
I don’t think any justices are saying that they don’t listen to oral arguments because they are not often persuasive. They are simply saying they are not often persuasive. And that 5-10% figure was “generous”, and a guess at his colleague’s inner motivations. 10% would be a significant number. The statement from \*\*doorhinge \*\*was, _“The oral argument part of the process is the least useful part of the whole process.”_ and I think that’s accurate. I am actually curious how much the amicus briefs influence decisions. My guess would be very little but I have nothing to base that on. So what are categories of influence? Merits briefing, oral argument, amicus briefings, appellate/trial/district court record… what else am I missing? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 1, 2016, 6:23pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/77 "2016-03-01T18:23:55Z")
Amicus briefs are likely the least persuasive sources. They generally just restate the arguments of the litigants in a way that plays up the interests of the _amici_. [This (admittedly somewhat dated) piece](http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3356&context=penn_law_review) suggests that the court quotes from only 3% of amicus briefs, the vast majority of which are the Solicitor General’s briefs. Like it or not, the justices’ preexisting views on the issue are bound to influence their votes, and are probably the most important “source” in terms of weight. Scalia was inordinately fond of quoting himself, for example. I suppose you could also count the opinions of other federal courts which considered the same issue, though they are obviously going to make up a substantial portion of the briefs anyway. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 1, 2016, 6:25pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/78 "2016-03-01T18:25:49Z")
> [@Bone](#): > > I am actually curious how much the amicus briefs influence decisions. My guess would be very little but I have nothing to base that on. The people who write amicus briefs for the big players tend to be former Supreme Court clerks themselves. They will tell you that it depends on the case and the justice in question, but that a handful of groups get all of their amicus briefs read by multiple justices (e.g., ACLU). And the clerks read even more. Occasionally, an opinion quotes or cites an amicus brief, so they clearly have some value (though you could argue that they don’t change the end result, as you could with everything else). > [@Bone](#): > > So what are categories of influence? Merits briefing, oral argument, amicus briefings, appellate/trial/district court record… what else am I missing? I mean, it depends on how fine-grained you want to get! [ul] [li]The judge’s pre-existing opinions on the law[/li][li]The underlying record[/li][li]The persuasiveness of the opinion being reviewed[/li][li]Cert. briefing (which often contains subtle or not-so-subtle merits arguments)[/li][li]Merits briefing[/li][li]Amicus briefing[/li][li]Oral argument[/li][li]Discussion in conference[/li][li]Chambers discussion (i.e., clerks)[/li][li]The process of drafting the opinion[/li][li]Outside research by chambers[/li][li]The importance of the opinion to the court/judge legacy[/li][/ul] I’m sure it could be broken down further. If you assigned a percentage to each input and oral argument were even 2% that would still make it pretty damn important, IMO. Important enough to participate in, even, and not just listen to. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 2, 2016, 1:23am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/79 "2016-03-02T01:23:03Z")
> [@Bone](#): > > …I am actually curious how much the amicus briefs influence decisions. My guess would be very little but I have nothing to base that on. So what are categories of influence? Merits briefing, oral argument, amicus briefings, appellate/trial/district court record… what else am I missing? (post shortened) Except for the hints in the relatively few interviews given by current or retired Supreme Court Justices pertaining to what actually goes on behind closed doors, I don’t believe any outsiders really knows the importance each Justice places on briefs vs. boxers, (I apologize in advance for that comment) briefs vs. oral arguments vs. Justices’ conference vs. case files vs. whatever. Each type of court document probably plays different levels of importance to different Justices based on the individual case. What happens in the Supreme Court’s chambers stays in the Supreme Court’s chambers? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 2, 2016, 1:55pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/80 "2016-03-02T13:55:01Z")
And yet a couple of posts ago you were telling us which were most important. [Previous page](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950.md?page=3) [Next page](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950.md?page=5)