This question is similar but different to https://politics.stackexchange.com/questions/10978/can-the-senate-postpone-confirming-a-new-supreme-court-judge-virtually-indefinit.

The Republican-led Senate has refused to confirm the appointment of Merrick Garland to the vacant seat on the US Supreme Court.

If Clinton wins the presidential election, but the Democrats fail to take control of the Senate, the Senate could indefinitely block Garland's appointment, essentially reducing the Supreme Court to an 8-justice court.

Now, what if another SCOTUS justice were to pass away, resulting in two vacancies? And then a third justice passed, away, leaving only six justices? Or, to take an unlikely example, if a tragedy occurred that resulted in the deaths of all remaining SCOTUS justices?

Is there a point at which the Senate Republicans would be forced to confirm a Democratic president's nominee in order to maintain a minimum number of justices on the US Supreme Court? Or could the number of SCOTUS justices theoretically dwindle to zero if all of them passed away during Clinton's time in office? What would happen then?

  • 2
    Since fairly obviously the minimum is zero (if say the building collapsed while the court was in session) you mean does anything force the Senate to give up its right and duty to "Advise and Consent" on judicial appointments per Article II, Section 2, Clause 2?
    – origimbo
    Oct 20, 2016 at 16:52
  • @origimbo The situation you describe is what I am talking about. If all the seats in SCOTUS became vacant, is there anything that would require the Senate to confirm the president's nominations? Or could the Senate let the Supreme Court stay empty, potentially for years, until a Republican president took office? Oct 20, 2016 at 17:21
  • 15 </Franklin_D._Roosevelt>
    – user4012
    Oct 20, 2016 at 17:36

2 Answers 2


Short answer: The minimum is zero and nothing currently prevents the Senate from causing this except public opinion. The Supreme court ceases to constitute a quorum, and thus presumably becomes functionally compromised with fewer than 6 justices.

The Senate's capability to veto Presidential nominations derives from article II, Section 2, Clause 2 of the Constitution.

He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Thus any legislation to force the Senate to accept a Presidential nomination without their consent would have to be via an amendment, and no such amendment exists, or to my knowledge has been proposed.

Meanwhile, as indigochild point out there is legislation defining that

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

So if four justices were to die without replacement there would cease to be a viable Supreme court, potentially causing a constitutional crisis. The expectation would be that any Senate willing to allow things to reach this situation when "reasonable" presidential nominees existed would be voted out of control at the next election, but it's conceivable that either the electoral cycle or a divided electorate could prevent this.

  • No constitutional crisis results so long as one judge stands. If the whole of the surviving appointed are present a quorum will certainly be assumed. This same scenario is what allows emergency succession in nuclear war to proceed fast enough.
    – Joshua
    Dec 12, 2016 at 0:52
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    @Joshua More importantly, the U.S. government could go on just fine for decades without a U.S. Supreme Court. Lower courts can do almost everything that SCOTUS does except handle litigation between two or more U.S. states (usually over water rights or boundaries) and they could agree to arbitrate their disputes.
    – ohwilleke
    Jun 18, 2019 at 23:00

The Constitution does not set the size of the Supreme Court. However, Congress has passed acts at various points which define the size of the Court. In general, the number of Supreme Court justices has expanded as the number of circuit courts has increased.

The latest such act is the Judiciary Act of 1869, which defines the Court to be a single Chief Justice and eight Associate Justices - for a total of nine.

Of course, Congress could pass a law which redefines the minimum number of justices at any time.

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