Gradually Disappearing Supreme Court

Stuart Taylor has a superb piece in National Journal entitled, “The Case Of The Gradually Disappearing Supreme Court.”

July 1, 2008 — With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court’s membership dwindled to four. The remaining two liberals (Stephen Breyer and David Souter) and two conservatives (Antonin Scalia and Clarence Thomas) are almost certain to deadlock on big issues including abortion, affirmative action, gay rights, religion, and presidential war powers. So any tie-breaking replacement for Stevens would be in a position to rewrite vast areas of constitutional law.

This, in turn, almost guarantees that no nominee in the foreseeable future will have much chance of getting past the Senate filibusters that have blocked all eight of the men and women named by the president since the retirements in 2005 of Chief Justice William Rehnquist and Justice Sandra Day O’Connor, at the ages of 80 and 75, and the retirements in 2007 of Justices Ruth Bader Ginsburg and Anthony Kennedy, at the ages of 74 and 71.

No matter who wins the 2008 presidential election, the Senate is once again likely to be so closely divided that senators in the opposing party will easily muster the 41 votes to sustain a filibuster against any nominee who does not pass their litmus tests. And any nominee who can pass the Democratic test would fail the Republican test, and vice versa.

Indeed, experts say it’s conceivable that the Court’s membership could eventually shrink to zero, unless and until one party or the other can muster a decisive Senate majority. (The Court would already be out of business had it not reduced the quorum required by its rules from six to five last year and then to four this year.) Whoever wins the 2008 presidential election will once again be under enormous pressure to pick nominees acceptable to his political base — and doomed to be blocked by filibusters — rather than seek a deal with opposition senators to break the logjam.

Oddly, this doesn’t seem entirely implausible.

FILED UNDER: Law and the Courts, Religion, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Fredrik Nyman says:

    If Kerry wins and the R’s retain a majority in the senate, it seems rather plausible, yes. OTOH, if Bush wins and the R’s retain a majority in the senate, I would expect them to just do away with the filibuster option for judicial appointments by majority vote.