Update Jan. 2006: Ross E. Davies, A Certain Mongrel Court: Congress's Past Power and Present Potential to Reinforce the Supreme Court, 90 Minnesota Law Review 678 (2006). Copyright 2006 the Minnesota Law Review Foundation. All rights reserved. Reprinted with permission. Available here (PDF).

Key Players Discuss Continuity of the Supreme Court

Trevor M. Broad. Intern, ABA Standing Committee on Law and National Security.
November 30, 2005.

The George Mason University School of Law Critical Infrastructure Protection Program in cooperation with the American Bar Association’s Standing Committee on Law and National Security held a panel discussion on November 30, 2005 on the continuity of the Supreme Court. The panelists included: John Cooke, Deputy Director, Federal Judicial Center; James C. Duff, Managing Partner, Baker Donelson; Norman J. Ornstein, Resident Scholar, American Enterprise Institute for Public Policy Research; and moderator Ross E. Davies, Associate Professor, George Mason University School of Law. The co-sponsors wish to thank all four panel members for their time and participation.

Mr. Duff offered four options for dealing with Supreme Court continuity. First, the country could maintain the status quo, meaning that the President could nominate as many people necessary to fill the vacancies on the Court created by a disaster, and if the Senate were incapacitated, the President could use recess appointments to achieve this end. Mr. Duff stated that this option was advantageous because there was no need for a constitutional amendment and relies on the lower courts to maintain consistency until normalcy is achieved. The disadvantage of the status quo is that there is potential delay in achieving finality, a public perception of instability, and concerns about one President nominating an entire Supreme Court.

The second option Mr. Duff proposed was for an emergency appointment process with checks on the recess appointment power. He suggested that there might be a mandate on the number of justices selected from each party such that only five of the justices come from the majority party. The advantage of this system is that it can prevent court packing, but the disadvantage is that it overemphasizes partisanship on the Court. He also pointed out that entire Supreme Courts have previously been appointed by one President and been very successful. He added that this option would also require a constitutional amendment.

The third method that Mr. Duff offered was to designate a body of judges to serve as a temporary Supreme Court. For example, have the thirteen chief judges of the federal Circuit Courts of Appeals serve as a Supreme Court for a period until normalcy returns. The advantages are that the country could deal with legal matters quickly; there would be a degree of stability; and the diversity of the members of the Court would be built-in. The disadvantages would be that it is a narrower pool of appointees than usual; questions would arise as to the finality of the temporary Court’s decisions; and this method would drain judicial resources by taking judges away from their other commitments.

The final method that Mr. Duff proposed was to appoint a “junior varsity” body of nine individuals to serve in the case of an emergency, who would have to go through the Senate confirmation process. The advantages are that there is a Court in place and that there would be stability. The disadvantages would be that a constitutional amendment would be needed; the decisions of the Court might not be final; there could be a weakened public perception of the Court; and the confirmation process for the emergency individuals would not engender the same feelings within the Senate as it would in a traditional vacancy on the Supreme Court.

Mr. Duff articulated that his preference was to maintain the status quo. His belief was that the country would rally in an emergency and other branches of government would respond in kind. He cited the incidents of 9/11 as an example of this unity. However, he said that there were a number of administrative concerns that deserve further consideration if the country does stay with the status quo.

Dr. Ornstein stated that in times of disaster, people want government that is quick, competent, and able to respond fully. He explained that the possibility that a significant portion of the federal government could be incapacitated is not necessarily a remote contingency. He argued that a catastrophic disaster at a Presidential inauguration could provide such a situation, and that few people would feel comfortable in having one President select all nine members of the Supreme Court. His preference was for an emergency panel to be set up that would act as a temporary Supreme Court, dealing with the most urgent matters before the Court. Finally, as food for thought, Dr. Ornstein suggested that the members of the Supreme Court should be limited to one eighteen year term, allowing a two-term President to appoint two new members to the Court, as opposed to the present system in which one president may have four appointments while another has zero.

Mr. Cooke maintained that judicial business will continue to role along during a time of disaster even if the Supreme Court is incapacitated for a period of time. Very few cases are reviewed by the Court each year, explained Mr. Cooke, and the cases that are reviewed do not necessarily need to be decided immediately. He argued that any mechanism that is put into place needs to be clear and well understood. He suggested that those designing the mechanisms should ask: “Are the mechanisms in place to protect ourselves or to do otherwise?” “What is the public acceptance of all of this?” Dr. Ornstein added that if Americans know the rules, they will accept the outcome; problems arise from decisions made on the fly.

Prof. Davies wound up the session with discussion of key points in his recent paper, “A Certain Mongrel Court: Congress’s Past Power and Present Potential to Reinforce the Supreme Court” (forthcoming, Minnesota Law Review). He explained that Congress can add requirements to any constitutional office without needing a constitutional amendment. He proposed that the Congress create additional seats on the Court with the requirement that the persons nominated to those positions not be able to serve unless the Court falls below a quorum. He also suggested that retiring justices might offer to permanently recuse themselves from the Court instead of officially retiring with the caveat that if the Court falls below a quorum, their recusal can be lifted.

The potentiality of teleconferencing was also briefly touched upon. Dr. Ornstein explained that in a dire situation this could be possible, but was not desirable in his opinion because the personal interchange between people face-to-face is a crucial component of how decisions are made at the Court.

The CIP Program wishes to offer special thanks to the ABA Standing Committee on Law and National Security, Suzanne Spaulding, Immediate Past Chair and current Advisory Board Member for their support in making possible this event. The CIP Program further wishes to offer a special thanks to the ABA Headquarters and Ms. Holly McMahon for providing logistical support and providing the venue.