By now, just about everyone has weighed in on the vacancy caused by Justice Scalia’s recent passing and the political debate over filling the vacancy. President Obama has stated his plans to nominate someone to fill the vacancy. Senators have come out in support and against filling the vacancy before the end of Obama’s presidency. The presidential candidates on the campaign trail have weighed in. Editorial boards around the country have weighed in. The American public has weighed in. Everyone has weighed in.
But what about those who know the Court best: the Supreme Court justices themselves?
Of course, it would be highly unorthodox for the justices to publically weigh in on a vacancy in general. One commentator has suggested that Chief Justice Roberts could resort to extraordinary measures and speak out on the issue just as one of his predecessors, Chief Justice Charles Evan Hughes, did to save the Court from turmoil when President Roosevelt proposed his Court-packing plan in 1937.
But as it turns out, no such extraordinary measures are necessary, because many of justices have already weighed in on the issue, albeit indirectly, over the years—including Justice Scalia.
In 2004, Justice Scalia wrote a memorandum denying the Sierra Club’s motion to recuse him from a case pending before the Supreme Court involving then-Vice President Dick Cheney because of a duck hunting trip that the two took in 2002. Beyond ethical considerations, Justice Scalia pointed to the importance of having all nine justices of the Court available to hear cases. With only eight justices, he explained, the Court “will find itself unable to resolve the significant legal issue” of the day presented in each case. A missing justice, in essence, “impairs the functioning of the Court.” Chief Justice Roberts made a similar point in his 2011 Year-End Report on the Federal Judiciary, stressing that a justice of the Supreme Court, unlike any other federal judge, must weigh heavily the importance of having a full court when considering recusal.
Chief Justice William Rehnquist expressed the same sentiment in a memorandum that he wrote when he was an associate justice in 1972. Addressing a motion to recuse, then-Justice Rehnquist noted that affirming lower court judgments by an equally divided court was “undesirable” because “the principle of law presented by [each] case is left unsettled.” The situation was worsened, Justice Rehnquist continued, when the Court is presented with a circuit split:
The prospect of affirmance by an equally divided Court, unsatisfactory enough in a single case, presents even more serious problems where companion cases reaching opposite results are heard together here. . . . [A]ffirmance of each of such conflicting results by an equally divided Court would lay down “one rule in Athens, and another rule in Rome” with a vengeance.
Clearly, the justices of the Supreme Court understand how important it is for the rule of law and the administration of justice to have a full Court. The justices have expressed profound concern over proceeding with a missing member in even a single case. The prospect of having to hear multiple cases with an eight-member Court for the foreseeable future—at least the better part of two terms—is intolerable to them and a disservice to the American people.
1 Cheney v. United States Dist. Ct. for the Dist. of Columbia, 541 U.S. 913 (2004) (Memorandum of Justice Scalia).
2 Laird v. Tatum, 409 U.S. 824 (1972) (Memorandum of Justice Rehnquist).