Is Eight Enough?

Merrick Garland

In an April 10 opinion piece published in the Des Moines Register, Sen. Charles E. Grassley (R-Iowa) argues that the “sky won’t fall with one less justice.” He notes, correctly, that since the foundation the U.S. Supreme Court has had between six and ten justices.

Is eight justices enough? Normative arguments aside, there may be a legal argument that it isn’t.

A lot of ink has been spilled over whether the Senate has a constitutional obligation to act on President Barack Obama’s nomination of Merrick B. Garland to fill the open seat on the Supreme Court. Allow me to spill a bit more.

The Constitution says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” justices.

One can make historical arguments—that the framers intended that the Senate act—or functional ones—that the confirmation system only works if the Senate does act—that it should. Indeed, many have.

But the Senate is allowed to make its own procedural rules, and there is no constitutional principle dictating when, or even whether, the Senate must vote on the nominee.

Even if we assume that the Constitution itself doesn’t force the Senate’s hand, however, there’s still another source of law that hasn’t gotten much attention.

By statute, the Supreme Court must have nine members. This isn’t a constitutional principle, but a legal one, embodied in 28 U.S.C. §1. The court has had nine members since 1869, and the language of the statute hasn’t changed since at least 1911.

The law reads:

“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”

“Shall,” as the Supreme Court has consistently said, means that something is mandatory. (See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (“‘Shall’ makes the [statutorily prescribed action] mandatory.”)) And unlike the rather vague constitutional provision, there’s less room for interpretation of the legislative command.

The statute uses “whom” in the final clause, rather than an impersonal “which,” suggesting the statute requires nine actualpeople.

However, the statute does allow any six to act as a quorum, potentially weighing against a strict mandate of nine. Justices occasionally recuse themselves for various reasons, or may die or retire suddenly. As Grassley notes, Justice Robert H. Jackson was absent from the court for a time prosecuting war crimes at Nuremburg. 

This quorum mechanism allows the court to operate in the meantime—better a short-handed court than no court at all.

The provision also has the same difficulty that the constitutional provision does—that is, it provides no guidance and imposes no requirements on filling these inevitable vacancies. However, the Senate is a deliberative body, and one wouldn’t expect it to impose rigid timing or voting requirements on itself via statute.

The law says the court “shall” have nine. When, if ever, does the Senate’s inaction become a violation of 28 U.S.C. §1?

Because according to the statute—at least in the long term—eight isn’t enough.