Temporary Justice — Vacancies on the Supreme Court
In virtually every area of society, when an important vacancy occurs there is a process for temporarily filling that position until a permanent replacement is found. Vice-presidents step up to become temporary presidents, interim deans of universities and acting directors of corporations are quickly appointed when needed. In sports, players are brought in off the bench when someone is injured. No baseball coach would consider waiting a couple innings to make a substitution, leaving only eight players on the field.
Yet the U.S. Supreme Court, one of our nation’s fundamental institutions, was recently left short-handed for well over a year after Justice Antonin Scalia died. Today there is another vacancy because of Justice Anthony Kennedy’s retirement. More vacancies and divisiveness over when to fill them are likely in the years ahead.
One might argue that eight brilliant minds are almost as good as nine when it comes to making legal decisions. However, in many important cases, the number of Justices makes a significant difference. Tie votes in the Court lack national precedent and merely uphold the decision in the local court below. In some matters, such as the religious exemption from parts of the Affordable Care Act, the appellate courts below reached opposing conclusions on the same question. Even during the Court’s recess, life-and-death matters can arise, such as a decision whether to grant a stay in a pending execution.
A procedure for temporally filling a vacancy on the Supreme Court is certainly possible. It need not interfere with the constitutional requirement that the President appoint Justices with the advice and consent of the Senate. Rather, what is needed is a process for having someone step in temporarily to assist the Court in its essential function of resolving constitutional questions in a timely manner. Once a new Justice has been duly appointed, the substitute would stand down.
The present process of shortchanging the Court for many months serves to further politicize the position of the Justices on the Court. A temporary replacement process would at least ensure a fully working judiciary while the political process took its course. If the Court wanted to rehear any matter decided under an interim regime, it would be free to do so.
Who could be a likely stand-in for a just-retired or deceased Justice? One suggestion would be the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit (currently Merrick Garland). Federal Circuit judges are subject to the same approval process as Supreme Court Justices — they are appointed by the President with the consent of the Senate — so a temporary replacement would have already passed scrutiny of the other two branches. The position of Chief Judge of a Circuit rotates among the judges based on seniority on the Circuit and is limited to a seven-year term, unrelated to elections.
Another source of legal expertise exists among retired Supreme Court Justices, such as Justices Stevens, O’Connor, Souter, and Kennedy. A former Justice could be asked to participate by the Chief Justice on a case-by-case basis in matters of urgent importance. The Chief Justice is already empowered to assign Circuit and District Court judges to serve temporarily in Circuits other than their own. Chief Justices have also appointed retired Justices to serve on committees of the Judicial Conference. For example, Chief Justice William Rehnquist asked former Justice Lewis Powell to chair a committee to review federal habeas corpus and to make recommendations to the U.S. Congress in the name of the Court.
Finding and adopting an acceptable alternative process would not be easy. The appointment of Justices is governed by the Constitution, and a constitutional amendment would be a long and unpredictable journey. The actual number of Justices is determined by Congress. It was set at nine by the Judiciary Act of 1869. Modifying this law could serve as a vehicle for allowing an interim appointment to the Court.
The fact that this is unchartered territory only underscores the importance of finding a solution before the crisis deepens. If an interim judge immediately assumed the responsibilities of an Associate Justice when a vacancy occurred on the Court, the act of appointing a permanent Justice could proceed in due course, without the danger of constitutional gridlock lasting until the next election.