Republicans in Congress have been rushing to hold confirmation hearings to fill Justice Anthony Kennedy’s seat. A reportedly positive meeting between nominee Brett Kavanaugh and Senator Susan Collins, a key Republican vote, makes his confirmation seem increasingly probable. But, with a significant political and legal crisis surrounding President Trump, a closely divided Senate, and resentments remaining from the procedural battles over the frozen Merrick Garland nomination, the Senate should just hit pause and leave Kennedy’s seat open for now.
Americans may think the confirmation hearings have to go forward because the Supreme Court is required to have nine justices and that all nine justices need to be present when the court begins its term this October. Nine seems written in stone because of high-profile 5-4 cases — such as Bush v. Gore — and the number of times Kennedy himself served as the fifth vote. And for a very long time the court has had nine justices. But nine is not a magic number.
Indeed, regardless of how large the justices loom over American life, nothing in the Constitution mandates that there be nine of them. How many justices did the first Congress think should be on the Supreme Court?
Six. One chief, five associate justices. An even number.
The Constitution offers only minimal guidance. Article III states “The judicial power of the United States, shall be vested in one Supreme Court.” Beyond the implication that a court requires more than one judge, Congress is left to figure out the details. In 1789, the Judiciary Act established the court with six justices.
Six justices made sense for many reasons. The six justices rode circuit; that is, each justice traveled across the United States holding court sessions. The six justices represented the geographical diversity of the early United States. There were no independent federal appellate courts. Two justices sitting with the district court justice made up the circuit court. The Supreme Court also had not yet developed the practice of issuing written opinions. The justices voted and offered individual reasons. Not until 1798 would Supreme Court opinions begin to be reported; only in 1804 did the court begin to regularly provide written opinions, and not until 1817 did the court have an official, salaried reporter.
Six justices made sense because decisions that became supreme constitutional law required, in essence, a two-thirds vote. And although profound disagreements existed, two vast national political parties had not yet arisen.
But the development of partisan political parties profoundly altered the way the Constitution worked. In the 1790s, the Federalist Party and the Democratic-Republican Party (the party of Thomas Jefferson) developed. Soon the judiciary became a battleground. Because judges served on “good behavior,” they were protected from losing office when the opposing party swept into power.
Jefferson and the Federalists fought over the court. While still in control of Congress, the Federalists passed the 1801 Judiciary Act removing the power to appoint a new justice, effectively dropping the number to five. Then, congressional Democratic-Republicans managed to postpone the 1802 Supreme Court session in the process of repealing the 1801 act and replacing it with a new 1802 Judiciary Act.
Initially, the court’s seats grew with the expanding territory. In 1807, a seventh justice was added and, in 1837, two more justices. In the midst of the Civil War, in 1863, a tenth seat was added to the court. A bit of trivia: The 10 justices apparently sat for only a week. Several years later the size was reduced, and in 1869 the court was fixed with nine justices. And at nine the court size has remained, despite occasional proposals to add justices — perhaps the most famous of which is remembered as Franklin D. Roosevelt’s “court-packing plan.”
Although cases such as Brown v. Board of Education (9-0) or Roe v. Wade (7-2) were not decided by one vote, there are enough one-vote-margin cases to have turned the court as a matter of popular culture into an apparent majoritarian institution.
But in the present moment, it would be better for the court not to be seen as a politically partisan, majoritarian institution. Perhaps a momentary truce could be called on the court. By not confirming Brett Kavanaugh, Congress could leave the court not just with an even number, but with a balanced political divide: four more conservative justices and four more liberal ones. And Congress could just leave the court this way for a while.
Would leaving the Court with eight justices have consequences? Of course. There would be many unresolved circuit splits, leaving the rules for certain areas of the country at odds with others. The Supreme Court would have to change its internal operating rules. And Chief Justice John Roberts would have to keep dealing with certain tasks — handling emergency orders and overseeing other matters from the sprawling, contentious Ninth Circuit — that fell his way when Kennedy retired.
Even so, senators unsettled by the current political moment in Washington could simply say that now is the wrong time to vote on a new Supreme Court justice, and can instead leave the ninth seat in a holding pattern. Just because a seat is open, the Senate does not need to fill it right now.
Mary Sarah Bilder is a law professor at Boston College Law School and the author of “Madison’s Hand: Revising the Constitutional Convention.”