# What happens if more Supreme Court judges die or retire? **URL:** \ **Category:** Factual Questions\ **Created:** [January 23, 2017, 6:00pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948 "2017-01-23T18:00:55Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![boffking](https://avatars.discourse-cdn.com/v4/letter/b/858c86/32.png) [@boffking](https://boards.straightdope.com/u/boffking)\ **Post date:** [January 23, 2017, 6:00pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/1 "2017-01-23T18:00:55Z")
By law, the Court is supposed to have nine members. Because of political gridlock, it seems very unlikely for any nominee to be confirmed. What happens if more leave the court? What if nobody is left? ---
**Author:** ![SmartAlecCat](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)\ **Post date:** [January 23, 2017, 6:07pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/2 "2017-01-23T18:07:39Z")
> [@boffking](#): > > By law, the Court is supposed to have nine members. Because of political gridlock, it seems very unlikely for any nominee to be confirmed. What happens if more leave the court? What if nobody is left? This should probably be moved to Great Debates. I believe the current president’s nominee for the open position will be confirmed shortly. I suspect the party out of power will claim that we should delay filling any additional vacancies until the people can weigh in, so they shouldn’t confirm any more until after the next presidential election. ---
**Author:** ![rsat3acr](https://avatars.discourse-cdn.com/v4/letter/r/a3d4f5/32.png) [@rsat3acr](https://boards.straightdope.com/u/rsat3acr)\ **Post date:** [January 23, 2017, 6:09pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/3 "2017-01-23T18:09:39Z")
The Republicans control the Senate, there won’t be gridlock. ---
**Author:** ![boffking](https://avatars.discourse-cdn.com/v4/letter/b/858c86/32.png) [@boffking](https://boards.straightdope.com/u/boffking)\ **Post date:** [January 23, 2017, 6:10pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/4 "2017-01-23T18:10:30Z")
> [@rsat3acr](#): > > The Republicans control the Senate, there won’t be gridlock. Senate Democrats have promised to gridlock Trump’s court nominations. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [January 23, 2017, 6:11pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/5 "2017-01-23T18:11:23Z")
The President sends nine nominations to the Senate for approval … a vast majority of the judicial appeals are solved in the thirteen circuit courts of appeals … even in this extreme example, only a few cases would be delayed, and that for only a few years … and a few years in the American court system is not a long time … Not to mention the 50 State court systems that would be unaffected … ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 23, 2017, 6:11pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/6 "2017-01-23T18:11:39Z")
The President nominates people, and if they are confirmed by the Senate, they fill the empty seat(s). If they aren’t, the President nominates someone else. Lather, rinse, repeat. If no one gets confirmed, then the public puts enough pressure on Congress until they confirm someone. At the worst, mid term elections replace some Senators and we try again. Regards, Shodan ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 23, 2017, 6:26pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/7 "2017-01-23T18:26:48Z")
> [@boffking](#): > > Senate Democrats have promised to gridlock Trump’s court nominations. The ability of the minority party to gridlock in the post-“nuclear option” era is going to be somewhat limited. ---
**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:** [January 23, 2017, 6:47pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/8 "2017-01-23T18:47:14Z")
Six justices make a quorum on the Supreme Court. It’s unlikely that three more justices will die or retire before any new ones are confirmed. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [January 23, 2017, 6:53pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/9 "2017-01-23T18:53:37Z")
The Republicans are likely to confirm whomever Trump nominates. I believe the OP is asking about if the SCOTUS falls below the minimum quorum indefinitely, then if there are fewer than 6 justices, then the SCOTUS just does not meet or decide any cases? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 23, 2017, 6:58pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/10 "2017-01-23T18:58:22Z")
> [@Velocity](#): > > The Republicans are likely to confirm whomever Trump nominates. > > I believe the OP is asking about if the SCOTUS falls below the minimum quorum indefinitely, then if there are fewer than 6 justices, then the SCOTUS just does not meet or decide any cases? I think it’s covered by this: 28 U.S. Code § 2109 - Quorum of Supreme Court justices absent : > [@](#): > > If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title. > > In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [January 23, 2017, 7:04pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/11 "2017-01-23T19:04:51Z")
We should wait until the next Presidential election to give the people a voice in the matter. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [January 23, 2017, 7:07pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/12 "2017-01-23T19:07:56Z")
Schumer has said that he’s prepared to delay confirmation indefinitely as the Republicans did. The problem is of course that he hasn’t got the muscle to do that. I don’t think there will be any problems unless Schumer manages to get some Republicans on his side which is doubtful. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [January 23, 2017, 7:14pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/13 "2017-01-23T19:14:21Z")
> [@Velocity](#): > > The Republicans are likely to confirm whomever Trump nominates. > > I believe the OP is asking about if the SCOTUS falls below the minimum quorum indefinitely, then if there are fewer than 6 justices, then the SCOTUS just does not meet or decide any cases? I guess one question is why there are so many vacancies for so long? Is the president refusing to appoint new justices or is the Senate refusing to confirm them? The reason could affect the outcome. Congress establishes the size and quorum of the Supreme Court by statute. It’s been set at nine justices and a six member quorum since just after the Civil War. [http://legisworks.org/sal/16/stats/STATUTE-16-Pg44c.pdf](http://legisworks.org/sal/16/stats/STATUTE-16-Pg44c.pdf) If the President just isn’t appointing justices, Congress could shrink the court’s quorum (with or without changing the size of the court) to allow it to continue to hear cases. It might have to override a presidential veto if the president were particularly obstreperous. If the Senate isn’t confirming justices simply because it doesn’t like the slate of candidates, Congress could shrink the quorum without changing the size of the court, allowing the remaining members to hear cases. The Senate could then continue to consider nominees to the court if the president will appoint more favorable ones. They could change the quorum back once a full slate was confirmed, or make it part of the law that a quorum is, for instance, at least 2/3 of the court (rounding fractions up). If Congress doesn’t want the Supreme Court to hear cases and so is rejecting every nominee so the court won’t regain a quorum, then yes, the Supreme Court can’t hear cases. It would also mean that the circuit court decisions throughout the country would be the binding law throughout that circuit but there is no guarantee the law would be the same from one circuit to the next. It’s recipe for legal chaos and a constitutional crisis. The easy fix would be a new congress who respects the court and, particularly, a new Senate who will confirm nominees. The hard fixes might be changing the constitution. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 23, 2017, 9:02pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/14 "2017-01-23T21:02:26Z")
> [@Falchion](#): > > The ability of the minority party to gridlock in the post-“nuclear option” era is going to be somewhat limited. Factual question: has that happened? Has the filibuster been repealed? ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [January 23, 2017, 9:25pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/15 "2017-01-23T21:25:40Z")
> [@Trinopus](#): > > Factual question: has that happened? Has the filibuster been repealed? The Republicans have indicated that they will change the rules to avoid a filibuster if it comes to that; they have enough people to do it. [http://www.politico.com/story/2016/11/gop-supreme-court-filibuster-nuclear-option-231582](http://www.politico.com/story/2016/11/gop-supreme-court-filibuster-nuclear-option-231582) **“We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.”** It hasn’t happened yet but they’re openly willing if it comes to it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 23, 2017, 9:58pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/16 "2017-01-23T21:58:32Z")
> [@Trinopus](#): > > Factual question: has that happened? Has the filibuster been repealed? It’s happened with respect to judicial nominees _except_ those for the Supreme Court and for other federal advise-and-consent nominees. In 2013, with the GOP in the minority, the Senate Democrats approved a rules change that eliminated the filibuster. The rules change they approved explicitly left Supreme Court nominees subject to a cloture rule. ---
**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:** [January 23, 2017, 11:01pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/17 "2017-01-23T23:01:40Z")
> [@Tired\_and\_Cranky](#): > > I guess one question is why there are so many vacancies for so long? Is the president refusing to appoint new justices or is the Senate refusing to confirm them? The reason could affect the outcome. > > Congress establishes the size and quorum of the Supreme Court by statute. It’s been set at nine justices and a six member quorum since just after the Civil War. [http://legisworks.org/sal/16/stats/STATUTE-16-Pg44c.pdf](http://legisworks.org/sal/16/stats/STATUTE-16-Pg44c.pdf) > > If the President just isn’t appointing justices, Congress could shrink the court’s quorum (with or without changing the size of the court) to allow it to continue to hear cases. It might have to override a presidential veto if the president were particularly obstreperous. A Senate that can’t agree on a nominee is not a Senate that will pass legislation reducing the size of the court or its quorum. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 23, 2017, 11:14pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/18 "2017-01-23T23:14:21Z")
> [@](#): > > Quoth **Atamasama** : > “We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.” > > It hasn’t happened yet but they’re openly willing if it comes to it. Wait, hasn’t happened _yet_? I thought that these rule changes needed to be introduced at the start of the new Senate. Haven’t they convened yet? ---
**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:** [January 23, 2017, 11:20pm UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/19 "2017-01-23T23:20:23Z")
The new session began on January 3, 2017, but they haven’t adopted new rules yet. [Timely CRS paper on Senate rule reform](https://fas.org/sgp/crs/misc/R44709.pdf). ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [January 24, 2017, 12:27am UTC](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948/20 "2017-01-24T00:27:03Z")
> [@Velocity](#): > > The Republicans are likely to confirm whomever Trump nominates. > … Or is that more a matter that Trump will nominate folks the Senate “suggests” are confirmable picks? Whatever Trump is, movement Republican isn’t it. I genuinely have no idea which side would be driving this particular bus. SCOTUS packing is a long term play and Trump is a short term guy. I could imagine him deferring to establishment R picks as the payment for them pushing through whatever the heck he decides he wants in some other area. Not that I’m predicting this will necessarily happen. I say merely that it’s a plausible possibility. [Next page](https://boards.straightdope.com/t/what-happens-if-more-supreme-court-judges-die-or-retire/777948.md?page=2)