Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), feeling pressure over his role in an unprecedented Supreme Court blockade, wrote an op-ed in which he insisted the whole mess is unimportant. The “sky won’t fall” if the Supreme Court remains deadlocked for a year and a half – eight justices is plenty – so the Republicans’ unprecedented scheme isn’t worth all the fuss.
Actual justices on the high court appear to feel differently. Justice Ruth Bader Ginsburg acknowledged publicly yesterday that the institution she serves is, in fact, being hurt by having eight justices instead of nine. The Washington Post reported:
The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.
She added, “Eight, as you know, is not a good number for a multi-member court.”
Ginsburg is hardly the only one who’s noticed. Slate’s Dahlia Lithwick noted last week that the Supreme Court can pretend that “it can manage just fine with eight justices,” but the fact remains that the institution is struggling to do its job.
Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court.
The same week, the editorial board of the New York Times added, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved…. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.”
By all appearances, the Senate’s Republican majority doesn’t care – according to Sen. Orrin Hatch (R-Utah), it’s somehow fair to treat Merrick Garland unfairly – but they should.