Democrats' Deceptions About High Court Vacancy
In the debate over the Supreme Court vacancy, Senate Republicans have taken a principled stand to wait until after the election to consider a nominee. In response, Democrats and their liberal allies have deployed a series of disingenuous arguments to convince Americans that, by considering a nominee after the election, the Senate is not doing its job.
In their latest attempt to deceive voters, progressives claim that the Supreme Court cannot function properly with fewer than nine justices on the bench. Many Democrats have suggested that the Senate’s decision will leave an unprecedented vacancy that will prevent the judicial branch from carrying out its constitutional duties.
This argument would be compelling if it weren’t completely unsubstantiated and ignorant of the Supreme Court’s history. In no way will the current vacancy inhibit the Court from fulfilling its most fundamental responsibilities.
Those who argue the Supreme Court needs nine justices to hear a case are either ignoring the truth or deliberately distorting the facts to fit liberal talking points. Nothing in our Constitution specifies the number of justices that should serve on the Supreme Court. Rather, the Constitution gives Congress the power to determine the structure of the courts, including the number of judges that serve on each court. These numbers have fluctuated throughout history, according to the best judgment of Congress.
For example, at the beginning of our Republic, only six justices served on the Supreme Court. In the decades that followed, Congress passed various acts to change this number. For many years, there were only seven Supreme Court justices; during the Civil War, there were as many as 10. It wasn’t until Congress passed the Judiciary Act of 1869 that the number of justices was fixed at nine. The fact that the Supreme Court issued thousands of decisions over many decades with six, seven, and even 10 justices on the bench undermines any suggestion that the Supreme Court can only function with nine members.
Just as disingenuous is the notion that an even number of justices will disrupt the proceedings of the Supreme Court by resulting in an inordinate number of split 4-4 decisions. Democrats who peddle this fiction willfully neglect the fact that the Supreme Court has consisted of an even number of justices at numerous times throughout its history, including when it was first established. They also ignore that the Court has well-established rules for dealing with tie decisions.
Consider Justice Robert Jackson’s leave of absence to serve in the Nuremberg Trials in 1945. His hiatus left the Supreme Court with only eight justices on the bench for an entire year. But having an even number of justices in no way inhibited the Court’s business. As Justice Felix Frankfurter wrote, Jackson’s absence did not “sacrific[e] a single interest of importance” because the Supreme Court could simply reschedule any cases that resulted in split decisions.
When tie votes occur today, the Supreme Court has the same ability to reargue cases at a later date or simply let the opinion of the lower court stand. But rarely is either option necessary because ties are so uncommon. That’s because the vast majority of the Court’s decisions are either unanimous or split along non-ideological lines. This holds true even for some of the most high-profile, controversial cases. For example, after Justice Elena Kagan recused herself from Fisher v. University of Texas—a 2013 affirmative action case with far-reaching implications for college admissions—the Supreme Court still reached a near-unanimous decision with only eight justices.
While Democrats would have us believe that an even number of justices hamstrings the Court and results in myriad split decisions, the statistics paint a different picture. Since I was first elected to the Senate nearly four decades ago, the Supreme Court has heard more than 500 cases with only eight justices—either due to recusal or vacancy. Less than seven percent of these cases resulted in a tie.
In such extraordinary circumstances, the Supreme Court simply rescheduled cases or let the lower court opinions stand, allowing the legal process to continue unabated. Contrary to the progressive narrative, the judicial branch does not come to a standstill when there are only eight justices; it continues to perform its constitutional duties without interruption. Perhaps this is why Justice Stephen Breyer and Justice Samuel Alito—justices of very different perspectives—both recently affirmed that the Supreme Court will continue to function effectively during the current vacancy.
In addition to arguing that the Supreme Court cannot function with fewer than nine justices, President Obama and his supporters have repeatedly declared that the Senate’s decision to wait until after the election to consider a nominee could result in the longest vacancy in history—one that could stymie the work of the Supreme Court. On this particular point, history again stands between liberal arguments and the truth.
The current Court vacancy is unlikely to last longer than a year. Yet throughout history, numerous vacancies have stretched for longer periods of time. For example, the seat vacated by Justice Abe Fortas in 1969 remained empty for nearly 400 days, and numerous vacancies in the 1800s sat open for more than two years. It is worth noting that in none of these cases was the Court unable to function without a full contingent of justices.
These historical precedents discredit the left’s assertion that the Senate’s action will lead to an unprecedented vacancy that will handicap the Court. Democrats who make this argument might have the media on their side, but they certainly don’t have the facts.
I call on my progressive colleagues to be honest with the American people: The Senate’s determination to wait until after the election to consider a nominee will in no way impede the business of the judicial branch. If anything, this decision will uphold the integrity of the Supreme Court by keeping politics out of the confirmation process.