A lengthy period with an evenly divided Supreme Court justices will not bring on the end times

By Tim Townsend

On the same day the Republican majority in the Senate declared it wouldn’t hold hearings or votes on a new Supreme Court candidate during the current presidency, one of the eight sitting justices said that number was just fine.

“We will deal with it,” Justice Samuel A. Alito Jr. told a group of Georgetown University law students on Tuesday. That’s exactly what every even-numbered Supreme Court bench in American history has done. And while it’s not an ideal situation, court historians say it doesn’t signal the end of the republic.

“There’s nothing in the Constitution that specifies the size of the Supreme Court,” Alito continued, and indeed, the document that the Supreme Court exists to interpret left it to Congress to determine the number of judges on the bench. Congress has taken advantage of that power, growing and shrinking the court’s size a number of times since its creation.

In its first session, in 1789, Congress adopted the Federal Judiciary Act, which established the Supreme Court and the number of justices at six — one chief and five associates. In 1807 Congress added a seventh associate justice, and in 1837 an eighth and ninth.

In December 1863 (for just one week) the number reached 10, the court’s highest ever. Richard D. Friedman, a professor at the University of Michigan Law School, called it “a bit of court-packing by a Republican-dominated Congress.” Because of illnesses and vacancies over the next three years, the number of justices fell below 10. For political reasons, Congress began chipping away at the number of justices with the 1866 Judicial Circuits Act, which gradually shrank the number of justices to seven.

The law effectively prevented President Andrew Johnson from appointing anyone to the court for the last two years of his term. There were no major cases that failed to get a majority vote when there were eight active justices around the time of the Civil War. After Johnson left office in 1869, Congress bumped the number of justices back up to nine, when Ulysses Grant, a reliable Republican, assumed office.

Aside from long absences, such as when President Harry Truman pulled Justice Robert Jackson from Supreme Court duty to lead the prosecution of Nazi war criminals in Nuremberg, the justice count has stood at nine ever since. Friedman said there were about 20 4–4 cases during Jackson’s year in Nuremberg, but that he didn’t believe any of those was “significant.”

If a case is divided 4–4, the Supreme Court can let the lower court decision stand, which doesn’t set a precedent. It can also kick the case over to the next term. The problem, Friedman said, is that a 4–4 division “means a delay in resolving conflicts among the lower courts.”

Stephen Wermiel, a professor at the American University Washington College of Law, said while an eight-justice court “may be some disruption and a less than ideal circumstance,” the institution “can clearly survive and function with eight members, or fewer.”

The real issue is how long the less-than-ideal circumstance can last. Since 1967, Supreme Court nominees have waited from 78 to 108 days for a decision on their nomination. By the time a new president is inaugurated in January 2017, the court will have been without a ninth justice for 341 days. The majority of Americans want the Senate to act on an Obama nominee, but it doesn’t look like that’ll happen.

The longest vacancy since the Civil War was in 1969, when two of President Richard Nixon’s nominees were rejected by the Senate. The Senate finally confirmed Justice Harry Blackmun 391 days after his predecessor’s resignation. That’s a long time without a deciding vote, especially if the ideologies on the bench are split down the middle.

“There were times in the history of the court when the court had an even number of justices,” Alito said at Georgetown Tuesday. “They must have been more agreeable in those days.”

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