# Replacing SCOTUS justices 'en masse' (e.g. if most were killed by a terrorist's bombing) **URL:** \ **Category:** Factual Questions\ **Created:** [March 26, 2012, 2:48am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811 "2012-03-26T02:48:08Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [March 26, 2012, 2:48am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/1 "2012-03-26T02:48:08Z")
I had actually appended this question to [my thread over in Great Debates](http://boards.straightdope.com/sdmb/showthread.php?t=646039) on the need for significantly heightened security for the members of SCOTUS. In any case, no one has offered an answer to it over there and, since it presumably has a factual answer, I’ll start this new thread. Again, my question is: in the event of the simultaneous or near-simultaneous death of more than one SCOTUS justices (as might occur from a terrorist attack), is there any procedure with respect to replacing them beyond what is usually done when there’s a vacancy (i.e. the POTUS advances a candidate who is then vetted and voted upon by the Senate)? My hope is that such a procedure does exist and would represent at attempt to prevent the sitting president from exploiting the situation by stacking the Court. In other words, any nominations (and appointments) in such exceptional circumstances should be bipartisan (as much as possible). ---
**Author:** ![Reply](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/reply/32/15952_2.png) [@Reply](https://boards.straightdope.com/u/Reply)\ **Post date:** [March 26, 2012, 3:13am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/2 "2012-03-26T03:13:44Z")
Here’s a [news article on the topic](http://www.fiercehomelandsecurity.com/story/paper-calls-post-terrorist-attack-supreme-court-continuity-plan/2011-10-22) that suggests maybe it’s an issue… “The paper also addresses the fact that the Supreme Court could be dramatically reshaped by a single president were a significant number of justices to be simultaneously killed. Justices on today’s court were appointed by five separate presidents–three of them Republican, two Democratic–and assumed office over a 25 year period. “The Court is not a product of one party, one president, or even one point of time in history,” the paper notes.” ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [March 26, 2012, 3:16am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/3 "2012-03-26T03:16:13Z")
> [@Reply](#): > > Here’s a [news article on the topic](http://www.fiercehomelandsecurity.com/story/paper-calls-post-terrorist-attack-supreme-court-continuity-plan/2011-10-22) that suggests maybe it’s an issue… Great link, thanks! ---
**Author:** ![Harmonix](https://avatars.discourse-cdn.com/v4/letter/h/3ec8ea/32.png) [@Harmonix](https://boards.straightdope.com/u/Harmonix)\ **Post date:** [March 26, 2012, 3:44am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/4 "2012-03-26T03:44:59Z")
Perhaps this goes into IMHO a bit… But in the event of multiple supreme justice deaths I suspect that it would be more useful for a sitting president to use judge appointments as political capital to get a their pet legislation past then to stack the court. That in itself might lead to ‘bipartisan’ appointments to the court. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [March 26, 2012, 3:51am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/5 "2012-03-26T03:51:46Z")
This is covered in Tom Clancy’s _Executive Orders_. I don’t have the book to hand; perhaps someone who does could detail what happens? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [March 26, 2012, 4:18am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/6 "2012-03-26T04:18:11Z")
Unless there’s a secret director’s cut of the Constitution that they’d use in a disaster, the procedure would be whatever the president and Senate agree to at the time, just like it is ordinarily. I’d think it would be a political issue, not a legal issue. ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [March 26, 2012, 4:24am UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/7 "2012-03-26T04:24:08Z")
Off topic, but FYI, the Constitution does not specify any specific number for the court and FDR attempted to “pack” the court when it repeatedly struck down New Deal legislation. > **[Judicial Procedures Reform Bill of 1937](https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937#Antecedents_to_the_Judicial_Procedures_Reform_Bill)** > > The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan", was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every In the... ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [March 26, 2012, 3:34pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/8 "2012-03-26T15:34:58Z")
In the antitrust case of [US v. Alcoa,](http://en.wikipedia.org/wiki/United_States_v._Alcoa)the Supreme Court decided that it could not assemble a quorum to hear the case (IIRC too many of the Justices owned Alcoa stock), so it referred the case to the Second Circuit Court of Appeals for decision. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 26, 2012, 3:40pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/9 "2012-03-26T15:40:45Z")
I think that you would have some political hardball being played. No way the Senate GOP will let Obama pick 9 liberals. They are going to demand 4 conservatives, 3 “moderates”, and 2 Obama picks. Then there will be dickering back and forth to where Obama has to appoint at least some people that the Senate GOP picks to break the stalemate. I see something very similar happening if Romney is elected and Ginsburg dies/retires. It will be a war because the nomination would swing Roe v. Wade 5-4 the other way. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 26, 2012, 6:43pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/10 "2012-03-26T18:43:42Z")
The quorum is 6, so the court can still sit with only 6 members. However, this is not in the constitution, so presumably congress can change it; as Roosvelt had threatened to change the total. Just because it is a bulk deal does not mean each court nominee is any less of a horse-trading than a single nominee nowadays. Note the additional tactic by Cheney et al, of nominating a fairly young judge to ensure their pick is valid for many more years to come. When the next supreme court nominee rolls around, I suspect “too old” will be a term applied to quite a few logical choices. There would be no reason to change the process, I assume each nominee would go through the same process. After all, there are a number of judges and other federal positions in the works at any time (and also being held up through partisan bickering). The process would just be more rushed by the fierce ugency of now, and the emotions surrounding any mass demise. the danger is that any particular party owns more than 60 seats in the senate and has the whte house at the crucial time. Then they could ignore the objections and do what they want. However, both sides also have to recognize the danger of ignoring the other side, like any “nuclear option”, means the other side will feel free to do the same when it is their turn. OTOH, from what I read, the ability to make temporary appointments while congress is in recess also applies to supremes. SO the president could probably appoint any missing judges the day after congress heads home if there’s a deadlock; those judges could thenhear whatever cases were necessary, and render their rulings. Of course, politics is give and take. Few serious judges want to play games with politics, it’s not their field; whereas, (temporary) packing a court to override established law or make a new one - wheth it’s new deal or Roe v Wade - is setting a dangerous precedent; that’s more of those political games that judges like to stay away from. More likely, what we’ve seen in the last 20 years is that sticking your neck out as a judge on any contentious social issue is a sure ticket to a rejected nomination. You’ll see more and more judges who hide their real views, who will (like Kennedy) turn out to be a big surprise to both sides once confirmed. Of course, younger judges are also a liability as their viewpoint may shift as they get older. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 26, 2012, 6:48pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/11 "2012-03-26T18:48:59Z")
> [@md2000](#): > > The quorum is 6, so the court can still sit with only 6 members. However, this is not in the constitution, so presumably congress can change it; as Roosvelt had threatened. The Judiciary Code has the quorum at 6, so yes, Congress can change it, as they enacted the current JC. When the SC was first organized in 1789, it only had 6 members. If it was a tie vote, the decision of the lower court stood. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 26, 2012, 7:31pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/12 "2012-03-26T19:31:54Z")
> [@lawbuff](#): > > If it was a tie vote, the decision of the lower court stood. That is still the rule if the Court divides evenly (e.g. - if a member of the Court has died since the hearing and not yet been replaced and the remaining 8 judges split evenly.) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 26, 2012, 7:51pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/13 "2012-03-26T19:51:42Z")
The only President ever to appoint all the members of the SCOTUS was, of course, George Washington. FDR came close, having appointed a Chief and eight Associates. Howsever, the Chief he appointed, Harlan F. Stone, had been named to the court, as an Associate Justice, by Coolidge, and one of his eight associate-justice appointments was Stone’s replacement as an Associate justice. Hoover’s only appointmnent, Associate Justice Owen Roberts, served for FDR’s entire Presidency and his replacement was named by Truman. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 26, 2012, 11:03pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/14 "2012-03-26T23:03:00Z")
> [@Polycarp](#): > > Hoover’s only appointment, Associate Justice Owen Roberts, served for FDR’s entire Presidency… This should be “Hoover’s only appointment **as** Associate Justice\*\*,\*\* Owen Roberts, served…” As the Chief Justice whome Stone replaced, Charles Evans Hughes, was also a Hoover appointment. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [March 28, 2012, 7:30pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/15 "2012-03-28T19:30:39Z")
Sandra Day O’Connor retired right before Rehnquist died. This meant that Bush had to nominate multiple Supreme Court nominees at the same time. The usual procedure was followed. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 28, 2012, 7:40pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/16 "2012-03-28T19:40:19Z")
As others have said, there is no alternative process to be found for appointing justices other than the one found in the Constitution. Just like there’s no process for reconstituting the House of Representatives other than through time-consuming special elections. There is of course the ability for a political deal to be struck on how to proceed with appointments: let’s say four justices are unable to carry on their duties, one could hypothesize that a variety of accommodations could be reached to defuse the political implications of one president making so many nominations. Perhaps the president and the Senate leaders would agree that the current president would only fill two vacancies, and leave the next two until the following election. Or perhaps senators not of the president’s party could suggest possible candidates for the president’s consideration, as has been done for district court judges. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [November 18, 2012, 3:55pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/17 "2012-11-18T15:55:07Z")
> [@Quartz](#): > > This is covered in Tom Clancy’s _Executive Orders_. I don’t have the book to hand; perhaps someone who does could detail what happens? In it the he is given the CVs of judges from the Courts of Appeals and the State Suoreme Courts with their names a d kther identifying details blanked out and he selects whom he thinks will do best. I suspect in such a situtation they would simply elevate a few of the more senior Court of Appeals judges. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [November 18, 2012, 4:06pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/18 "2012-11-18T16:06:27Z")
The Supreme Court is not that important on a day to day basis. If all the justices were gone in a blink it could take years to replace them all. The senate would drag their feet until some number of appointments were agreed upon, and then that subset would be approved all at once to restart the court. The remaining appointments would be expected to reach the current number but it would span at least one more election cycle before the rest were approved. ---
**Author:** ![ed\_anger](https://avatars.discourse-cdn.com/v4/letter/e/bbce88/32.png) [@ed\_anger](https://boards.straightdope.com/u/ed_anger)\ **Post date:** [November 18, 2012, 4:22pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/19 "2012-11-18T16:22:57Z")
If we are going to ask these kinds of questions, might as well go the whole hog. What if DC was nuked on Inauguration day, and most of the Supreme Court, Congress, the President and VP are all killed? ---
**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:** [November 18, 2012, 4:30pm UTC](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811/20 "2012-11-18T16:30:34Z")
> [@AK84](#): > > I suspect in such a situtation they would simply elevate a few of the more senior Court of Appeals judges. That’s what happens normally. Most Supreme Court justices are appointed from the various federal circuits. [Next page](https://boards.straightdope.com/t/replacing-scotus-justices-en-masse-e-g-if-most-were-killed-by-a-terrorists-bombing/616811.md?page=2)