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What would happen to the Court, would it just continue to operate with less than 9 members? I guess since their is no constitutional requirement for number of justices it could be any number right?
In reality I guess political pressures would demand the President nominate someone less conservative, but in theory a President could spend all four years of his term getting his choices shot down right?
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28 USC 1 provides: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”
What this means is that if there are at least six justices on the Court, it will operate just fine.
It’s pretty common to have an eight judge Court after one justice has resigned, died or become disabled. For instance a few years ago Justice O’Connor resigned, but she said her resignation would take effect when her successor was appointed, and then Chief Justice Rehquist died. After Renquist’s death, the court operated with eight justices, with Justice Stevens, the senior associate justice serving as acting Chief Justice. John Roberts had originally been appointed to fill O’Connor’s seat, but when Renquist’s had died before Roberts had been confirmed, he was appointed to the Chief’s seat and quickly confirmed. Later that year Samuel Alito was appointed to fill O’Connor’s seat, and immediatly upon his confirmation he came in and O’Connor left. It is not unprecedent to have two vacancies on the court, but I can’t recall there having been more than that.
Even more common is a justice not sitting on a particular case because of a conflict of interest or temporary inability (usually medical) to sit.
Where there are an even number of justices, if they split evenly on a decision, the ruling by the court below stands. Because the Supreme Court is almost exclusively an appellate court, if there were not to be quorum of justices, it would also be the case that the ruling by the courts below would stand as the Supreme Court would be unable to act to review the cases. I guess petitions for certiorari (applications to have the Court hear a case) would simply pile up until there were a quorum to hear them. The very few original jurisdiction cases that they hear are usually things like border or water right disputes between states, and those almost always take years, so it wouldn’t really screw things up there.
If the President and Congress were really at loggerheads, the President might use the recess apppointment power to temporarily (until the end of the next Congressional session) appoint justices to the Court while Congress was in recess, but that would carry some substantial political risks.
Although there have been several when one or more Presidential appointments get rejected by the Senate (or withdraw under pressure fefore being rejected), you are correct that the President usually moderates his choices after rejections and the Senate gets a little more foregiving after having forced choices out, eventually coming to an consensus choice.