For the first time since 1864, the U.S. Supreme Court starts its new term with an unfilled spot on the bench, over seven months after the unexpected death of Justice Antonin Scalia, as that vacancy continues for some to hang over the work of the Court like a dark cloud.
“Things operate much better when the Court has its full complement of Justices,” said Thomas Goldstein, who says it’s clear why an even number of eight on the bench does not work.
“We did have six Justices a couple hundred years ago, and then we decided that was a really stupid thing,” added Goldstein, the creator of the scotusblog.com website that chronicles the work of the U.S. Supreme Court.
“The Court is a diminished institution,” because of the vacancy, argues Caroline Frederickson, the head of the American Constitution Society.
“As we saw at the end of the last term, the Court was unable to resolve a number of critical cases,” Frederickson noted at a recent preview of the new term, as she singled out the 4-4 split on President Obama’s executive actions on immigration as one prime example.
But not everyone is worried.
“Of course I’d like to see a ninth justice confirmed in due time,” said Professor Nicholas Quinn Rosenkranz of Georgetown University’s law school.
“I think the Court will survive this moment,” Rosenkranz said at a recent preview of the new term held by the Federalist Society in Washington, D.C.
“The conventional wisdom is that the Court is attempting to take cases that aren’t hitting as many of the hot button issues, certainly unlike the last couple of terms,” said Carrie Severino, a conservative legal expert.
Severino says she expects more efforts by the Court to find common ground as long as there are only eight justices – something she hopes can be remedied soon.
“It’s been such a depressing year in general at the Court,” Severino said at the same Federalist Society preview.
As for big cases, the Justices will again look at the death penalty, electoral redistricting and more – when a ninth Justice will arrive, that’s still anyone’s guess.
“My personal guess is that you will see in the end, if Hillary Clinton wins the election, a pivot,” by the Republicans, said Goldstein, who thinks a Donald Trump loss would probably result in swift approval of Merrick Garland, the judge nominated by President Obama to replace Scalia.
But for now, the Supreme Court starts this term with eight justices, and one empty chair at the bench, on this first Monday in October.