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A logical extreme based on Can congress be sued for prolonging the nomination of a Supreme Court Justice?. First suppose Congress cannot be sued from prolonging the nomination of a Supreme Court Justice. Next suppose there's 50 years of gridlock, in which the party majority of Congress refuses to approve any of the opposing party President's Supreme Court nominations. Last suppose that over the course of that 50 years, every living Supreme Court justice retires or dies.

Unlikeliness aside, is this theoretically possible, or does some legal mechanism prevent it?

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    There are two questions here and an answer to the first one. I'm willing to answer the second one, but to avoid confusion, can you split it off into its own question? – Brythan Dec 20 '16 at 15:16
  • Even without a legal mechanism to prevent it, the electorate will prevent it by giving both Senate and President to a single party. The nature of the judges submitted for confirmation will tend to influence which way the election goes, either punishing the party of the former president who nominated judges worth of being blocked, or punishing the party which formerly controlled the Senate for obstruction of reasonable nominations. – Ben Voigt Dec 20 '16 at 16:22
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    @Brythan, OK, see If the Supreme Court were depopulated, what powers would be lost? – agc Dec 20 '16 at 19:17
  • @BenVoigt, thanks, we all can agree it seems highly unlikely, but still this Q presupposes that the electorate fails to prevent it. – agc Dec 20 '16 at 19:22
  • This is why we need a US constitutional amendment that says "If any nominee is not confirmed or rejected by the Senate within 30 days after it has been presented by the President, the nominee shall become confirmed, in like manner as if the Senate had confirmed it." This would be consistent with Article 1, Section 7 of the constitution, which does the same thing for presidential vetos. We should consider adding "If the Supreme Court contains zero justices, or an even number of justices not more than 10, and any nominee is not confirmed ..." – Moby Disk Dec 20 '16 at 22:06
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I don't believe there is any current mechanism that would allow for a Supreme Justice to be appointed for life without Senate confirmation.

Assuming you discount substantial law changes being passed, the only other way that you could have a functioning Supreme Court would be via a succession of recess appointments. These can be appointed by the President without Senate confirmation and would be able to stay for a period of up to 2 years (depends on the Senate cycle).

Theoretically, the President could keep the recess appointments ticking over but, in practice, you'd be in a constitutional crisis well before this. At the very least, if you've had at least 6 different Presidents come and go without any ability to get a nomination through the Senate, my guess is that Supreme Court Justice appointments are the least of your problems.

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    Recess appointments also require the Senate to actually take a recess, which they don't any more. – Bobson Dec 20 '16 at 15:08
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    @Bobson well yes, but when Obama last made a recess appointment, it required the Supreme Court to strike it down. You see where I'm going here... – Alex Dec 20 '16 at 16:00
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    I'm pretty sure that in this scenario, a state supreme court issuing a ruling that the justice could not take office and therefore his rulings could be ignored would not be opposable. The necessary division to cause this scenario would also prevent taking action against the state. – Joshua Dec 20 '16 at 18:08
  • @Joshua you may wish to look at the path a case takes to the supreme court, generally there are lower federal courts first. It would be a rouge district court (I'm looking at you #9) that would be the test. – user9389 Dec 20 '16 at 21:06
  • @notstoreboughtdirt: The reason I wrote state court is it will be a state taking offense at a ruling they don't like. – Joshua Dec 20 '16 at 21:15
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Alex's answer addresses the appointment aspect, but as far as what the court can do without a quorum (which is less than 6 justices), 28 U.S. Code § 2109 addresses that (emphasis mine):

If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title.

In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.

This doesn't cover what would happen if there is no Chief Justice or no justices at all. Like everything else around the edges of the Constitution, it's likely that a prolonged lack-of-quorum would eventually trigger a Constitutional crisis of some sort.

  • Right, but the Q is more about what kind of governmental oddities might occur between the hour of need and the hour of deliverance. The notion that a crisis even existed might become as politically obstinate as global warming (or climate change, the greenhouse effect, etc.), assuming the delay benefited sufficiently powerful interests who believed deliverance needn't be hasty. – agc Dec 20 '16 at 19:31
  • Cases that must be heard by the Supreme Court in the first instance simply could not be heard. – David Schwartz Dec 20 '16 at 21:44
  • @DavidSchwartz Are there any such cases? – owjburnham Aug 2 '17 at 12:43
  • Certainly. See 28 USC 1251. These include suits between the United States and a State, proceedings by a State against citizens of another State, and suits where an ambassador of a foreign state is a party. – David Schwartz Aug 2 '17 at 12:46

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