I fully expect that Donald Trump will put forward an exceptional nominee to fill the Supreme Court vacancy left by Justice Scalia’s death. Given the composition of the Senate and the bench of judicial talent, it should be hard to get this selection of a new Justice wrong.
After this one, though, all bets are off. The tempest swirling around a potentially Court-moving nomination may be too intense to expect that a sound jurist could make it through. And another Anthony Kennedy to replace the current Anthony Kennedy would be another thirty-year mistake. (For one view of how Justice Kennedy’s nomination looked at the outset, see this 1987 New York Times article by the recently elected President of the American Philosophical Society.)
Before the 2016 presidential election, I advocated prospectively reducing the size of the Supreme Court to seven Justices. Among other things, I suggested that “no new Justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” Now that we can reasonably expect confirmation early next year of a new Justice who shares Justice Scalia’s understanding of the Constitution, I’d obviously like to see that happen.
With that Justice confirmed, though, the elected branches should trim down the Supreme Court’s size to seven justices. That remains one of the safest strategies to aid in the healing of what ails our constitutional law.
If unfilled, the next two vacancies would bring the Court down from nine to seven. Those vacancies are likely to come about through some combination of departures by Justice Ginsburg, Justice Kennedy, and Justice Breyer. A seven-Justice Supreme Court without any two of those three would feature a solid four-justice majority of Chief Justice Roberts, Justice Thomas, Justice Alito, and the new Justice who fills the Scalia seat.
Legislative reduction in the Court’s size in reaction to the most aggressive and adventuresome decisions of the past several decades might lead to greater legal fidelity on the part of the Justices who remain. And a smaller Court would empower the Chief Justice to more effectively mass the Court through judicious opinion assignments.
The principal problem with this proposal is that it is entirely unrealistic at this point. It is difficult to imagine how legislation like this would have a chance of becoming law given current political alignments. A congressional move to reduce the size of the Supreme Court would only occur in a time of substantial distrust of the President, who would almost certainly veto it anyway.
It is nonetheless worth staying aware of the legal availability of a move like this and periodically evaluating its advisability. Should President Trump at some point prove unable or unwilling to put forward the right kind of judicial nominee, seat subtraction is an alternative to simple Senate refusal.