Could the Supreme Court be un-packed?

The death of Justice Antonin Scalia has left the U.S. Supreme Court with an even number of justices.  If they divide four-four on any case, the decision of the lower court stands, but it does not become settled law.

 As things stand now, a divided court would not be the worst thing from the standpoint of liberals.  They mostly like existing precedents and mostly oppose have them overturned.

My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy.

Franklin D. Roosevelt failed to pack the Supreme Court with nominees of his liking.  Bill asks: Would this be un-packing the Court?.

I don’t see how this would be any different, or any more obstructive, than Senate Majority Leader Mitch McConnell saying that Republicans will automatically reject any Obama nominee, no matter who the person is.

Article II, Section 2 of the Constitution grants the President the power to appoint Supreme Court justices, with the advice and consent of the Senate, but I find no wording requiring him to do so in a timely manner.

President Obama has already said that he intends to nominate someone to fill Scalia’s vacancy, but does he have a responsibility to nominate a second person or a third if the Senate rejects his first nominee?  Of course this is a moot question if the Republicans are going to reject any nominee.

I don’t like the present situation, but I think it is a result of both liberals and conservatives using the judicial system as a legislature of last resort, rather than following Justice Oliver Wendell Holmes Jr.’s philosophy of judicial restraint—that is, deferring to executive authority except when the law clearly says otherwise, and deferring to the legislative authority except where the wording of the Constitution clearly says otherwise.

LINKS

Here’s how Scalia’s death affects Supreme Court rulings this year by Richard Wolf for USA Today.

How the politics of the next nomination will play out by Tom Goldstein for SCOTUSblog.

Not replacing Scalia: Game theory in the real world by Richard Lempert for Bookings Institution.  [added 2/16/2016].  Hat tip to my expatriate friend Jack.

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2 Responses to “Could the Supreme Court be un-packed?”

  1. Barry Says:

    “My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy’

    The instant that the GOP got the presidency, they’d fill that vacancy.

    As the Rude Pundit says, SATSQ.

    Like

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