WASHINGTON — Is eight enough?
The Supreme Court has managed to function effectively at less than its full nine-member strength for two extended periods in the past 50 years. The question now is whether the death of Justice Antonin Scalia in the middle of the court term and a polarizing presidential campaign will make it harder for the justices to get their work done.
Scalia’s colleagues will mourn their longtime friend and fellow justice this week before resuming their work on a lineup of cases fraught with political implications. Their test will be whether they can reach decisions in cases involving abortion, labor unions, President Barack Obama’s health care law, voting rights, immigration and other topics without reaching an inconclusive 4 to 4 vote.
Adding spice to the mix is the unusual makeup of the court, with four liberal-leaning Democratic appointees and four conservative-leaning Republican appointees.
One of the term’s biggest cases will be argued on March 2, when the justices weigh whether Texas’ strict regulation of abortion clinics impinges on a woman’s constitutional right to an abortion. Scalia would have been a sure vote to sustain the regulations.
If Senate Republicans hold fast to their vow not to confirm anyone Obama nominates, then the Supreme Court will operate with eight justices not just for the rest of this term, but for most of the next one as well. High court terms begin in October, and the 80 or so cases argued in the course of a term typically are decided by early summer.
The court would be unable to issue nationwide rulings on any issue in which the justices split 4-4. “That would essentially be putting the Supreme Court in gridlock for two terms,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
Some Supreme Court law clerks who worked at the court when there was a prolonged vacancy recalled that business proceeded apace, without additional tension and only a handful of split decisions. At the same time, the justices postponed consideration of some major cases while they awaited a new justice.
“The main impact of an eight-man court that term … was that the court decided few cases involving significant constitutional law,” Taylor Reveley, a law clerk for Justice William Brennan in 1969-70 and now president of the College of William and Mary.
The most notable of the deferred cases may have been challenges to the death penalty, according to Bob Woodward and Scott Armstrong’s book “The Brethren.” Harry Blackmun joined the court in May 1970, after the Democratic-controlled Senate rejected President Richard Nixon’s first two choices. It was another two years, after the retirements of two more justices, before the court took up the issue and struck down every state death penalty statute.
The Supreme Court heard about 150 cases in those years — almost twice as many as today — and Blackmun had to deal with hundreds of appeals in which his vote would determine whether or the not the case was heard. In the end, he voted to hear only a handful, according to The Brethren.
In the 1987-88 term, President Ronald Reagan’s first two high court picks failed before Justice Anthony Kennedy was confirmed in February 1988. Kennedy came on board and the justices ordered new arguments in four cases in which they had been split 4-4, Jan Crawford wrote in her book “Supreme Conflict.” Four hundred appeals also awaited Kennedy’s review, Crawford said.
Scalia’s death presents an immediate challenge to the court because he had participated in all the cases argued until now. The justices made choices about which issues to hear and which to forgo based on the assumption that Scalia would be sitting with them.
Chief Justice John Roberts recently lamented a public view that the court is just another political body. He and the others may feel some pressure to demonstrate otherwise, and that could manifest itself in a greater search for compromise, said Michael D. Zimmerman, a former Utah Supreme Court justice and clerk to Chief Justice Warren Burger in 1969-70.
“When the power dynamics change among them as the membership changes, or the individual members shift perspective, they make pragmatic shifts. From my own experience … I suspect they all take a long view, and that they are realists about these dynamics,” Zimmerman said.
An early test could be a pending emergency appeal from North Carolina that seeks to keep the state’s congressional districts intact for the upcoming primary elections, despite a federal court ruling that struck down two majority-black districts and ordered a new map drawn by Friday.
The Supreme Court generally doesn’t like voting changes to take effect close to an election, though some of the liberal justices have objected when the court blocked changes that would have benefited minority voters. Chief Justice John Roberts could act on the appeal himself or involve the entire court, for which he would need at least one liberal justice to join the four conservatives in granting North Carolina’s request.
