There are many reasons why President Barack Obama should nominate a successor to fill the Supreme Court vacancy left by the late Justice Antonin Scalia. For one, the Constitution gives him the power, some might say the duty, to make the nomination. More importantly for liberals across the country, this is a rare opportunity to shift the direction of the Court, from its present conservative orientation toward a new progressive era. A nomination could also be a clever way for the President to help his party, on the theory that the Republican-controlled Senate would likely reject whomever he nominates, which would in turn repel voters and drive them to cast their ballot for the Democratic Party in the November presidential and congressional elections.
Yet none of these reasons is convincing on its own nor indeed do they make a slam-dunk case when marshalled together. But each is nonetheless more convincing than the unpersuasive reason that has been invoked as the clincher for why the president must nominate a new justice, and why he must do so now: because the Supreme Court needs a full complement of nine.
The argument that the Court needs nine justices finds no support anywhere that matters. The Constitution does not require it, congressional law does not specify it, nor even does history suggest that it is necessary.
The bottom line is that there is nothing special about having nine justices, and it is quite simply misleading to argue that the Court cannot function any other way.
The Constitution is not clear about everything but it leaves no doubt about this: There is no such thing as a rule of nine. The Constitution states only that there shall be “one supreme Court” and as few or as many “inferior courts as the Congress may from time to time ordain and establish.” The upshot of this textual silence on the size of the Court is that it is up to Congress to decide.
Congress has in fact passed several laws setting and then changing the composition of the Court. In 1789, Congress set the initial number at six, with the first Court consisting of one Chief Justice and five Associate Justices. In 1801, Congress reduced the Court to five, then increased it back to six the next year, and then to seven in 1807. Congress later increased the size of the Court to nine in 1837, then to 10 in 1863 before again shrinking the size of the Court to seven in 1866.
Today the Court counts nine justices, a result of the Judiciary Act of 1869, which continues to govern the composition of the Court to this day. The critical part of this law is a little known clause that requires a quorum of six for the Court do to its work, far fewer than the nine that is now incorrectly thought essential despite the many moments in modern American history, some terribly important, when the Court has operated with fewer than nine justices.
To be fair, nine does have its advantages. It almost always yields a final judgment, guaranteeing that the Court will not be deadlocked in an even split. But even at nine, a 4-4 outcome remains possible where a judge recuses herself from a case, as Justice Elena Kagan has done in this year’s crucial affirmative action case.
Some may cite the public repudiation of President Franklin Delano Roosevelt’s 1937 court-packing plan as support for nine and also as justification for it. But the rejection of Roosevelt’s plan had nothing to do with the sanctity of the precise number of Supreme Court justices and everything to do with prudently denying the president the power to control the outcome of cases.
Nor is nine today the norm on high courts across the world. There are five in New Zealand, seven in Australia, 11 in South Africa, 12 each in the United Kingdom and Spain, 15 in Israel, Italy and Japan, and 16 in Germany, where the Federal Constitutional Court is divided into two eight-member senates. And although Canada’s Supreme Court has nine justices, the Chief Justice has the authority to set panels of smaller sizes, say of five or seven.
So why does the myth of nine continue to hold sway in the American public imagination? There are many layers to it, but part of the answer is the deep veneration for the Constitution and its institutions. Time and tradition have conspired to make nine seem like an integral part of American political culture, and the strength of this perception has hardened what began as a contingency into a false necessity. But neither the constitution, nor congressional law, nor even history counsels that there is anything special about nine.
Political actors should continue to debate who should fill the Supreme Court vacancy and when, and they should do so vigorously. But the debate should be informed by fact, not the fictional rule of nine.Richard Albert is an associate professor at Boston College Law School and, in 2015-16, a visiting associate professor at Yale Law School.