If, due to some doubly unlikely and unhappy combination of accident and obstinacy:

  • a sitting Supreme Court were to (as a whole) perish or all retire, (whether suddenly or gradually),

  • a lengthy gridlock prevailed that pitted a polarized and partisan Congress against an oppositely polarized president, such that the Senate steadfastly refused to confirm any of that President's Supreme Court appointments so that the Supreme Court was entirely depopulated,

...then (for as long as the gridlock prevailed):

  1. What, if any, judicial powers would be lost?
  2. Assuming various lesser courts then became by default the de facto highest courts, in which offices would the power of appointing those courts' judges rest?
  3. What checks and balances would be lost?

This Q is a spin-off of the perhaps overly complex Could a lengthy enough political gridlock entirely depopulate the Supreme Court?, by request of user Brythan.

  • 1
    It's not necessary for the entire Supreme Court to leave for this to happen. The court cannot conduct its business with fewer than six justices. Since the court now has eight, if three of them leave the court for whatever reason, the court would be paralyzed until at least one of them is replaced, unless Congress were to change the law.
    – phoog
    Commented Dec 20, 2016 at 22:44
  • 1
    @phoog Generally true, but some tasks, like granting stays of lower court rulings and presiding over the administrative office of the courts, can be accomplished without a quorum, and it wouldn't be too hard to conclude as a matter of first impression under those circumstances, that granting or denying cert (which normally takes four justices rather than a majority) and appointing special masters in original jurisdiction cases also don't require a quorum. There would be no final rulings on cases with grants of cert or cases referred to special masters, but it might make final denials of cert.
    – ohwilleke
    Commented Dec 23, 2016 at 19:06
  • @ohwilleke thanks for mentioning that. I decided not to get into it mostly because I don't know off the top of my head all of the things that don't require a quorum. But just because for justices have to vote on cert doesn't mean that you don't need a quorum, does it? The rules might say that four votes are needed and at least six justices must consider the case.
    – phoog
    Commented Dec 24, 2016 at 1:03

2 Answers 2


What, if any, judicial powers would be lost?

Beyond those powers seated in the Supreme Court, the Supreme Court is the only court that can resolve circuit splits. Circuit splits are when two appeals courts resolve a particular judicial situation differently. In the absence of a Supreme Court, each of the eleven circuit courts would have jurisdiction over its own area.

Until such a time as the Supreme Court is restored, this would essentially split the country into eleven legal jurisdictions. They can respect the precedents set in other courts, but they aren't bound by them.

The highest court in each jurisdiction would be an en banc review, which comprises all the judges of that circuit. Not so difficult in most circuits, but in the Ninth, that would currently require twenty-nine judges. They normally sit in a more abbreviated eleven judge panel when it is necessary to overrule a three judge panel.

Assuming various lesser courts then became by default the de facto highest courts, in which offices would the power of appointing those courts' judges rest?

The President with the advice and consent of the Senate. Sound familiar? Yes, that is the same people who select Supreme Court justices. In fact, every federal judge is chosen that same way.

There are currently some procedural differences. Lower court appointments cannot be filibustered. But as you may recall, this was instituted by a simple majority. So the Senate could institute the same rule for the Supreme Court as currently applies to the lower courts. Of course, we don't know that the Senate would do that, but they could. It seems likely that in your scenario, they would. Note that the Senate did not last two years the last time that a majority had trouble meeting the supermajority requirement.

If all courts were under the new rules, then if Supreme Court appointments were blocked for a long time, it is likely that lower court appointments would be blocked as well.

What checks and balances would be lost?

In theory, it's not clear that any of the checks and balances would be lost. The check and balance powers rest in the courts in general, not specifically in the Supreme Court.

In practice, the greater danger is that the courts would lose legitimacy. If the other branches stop respecting their decisions, then the courts' checks don't work. There is also a concern that the federal government might engage in jurisdiction shopping. Don't like the Ninth's ruling? Bring suit in the DC circuit instead.

  • The other thing that is the exclusive responsibility of the U.S. Supreme Court is the Administrative Office of the Courts which handles things like the judicial branch budget, court rules amendments, committee appointments, hiring of a significant share of the administrative staff, the probation system, the H.R. process in lower courts, setting security standards for federal court houses, overseeing construction projects, etc. Presumably, an old administrator could have an "acting" role as director of much of this, but the chief justice personally is required to approve some of these actions.
    – ohwilleke
    Commented Dec 23, 2016 at 18:59

Lost Judicial Powers and Checks and Balances

First loss would be the items for which the Supreme Court has Original Jurisdiction, meaning it and only it has purview to review

--From Article 3 of the US Constitution

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

A longer description of both the case law and interpretation of original jurisdiction can he found here

Second loss would be Judicial Review which is both a loss of power, and a loss of a check on the powers of both the executive and legislative authority. From Federalist No 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.


The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.


The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Finally, a loss would be able to rule on issues that arise from disputes in multiple districts. Although lower courts would have some review, inconsistent findings in multiple jurisdictions would not have unified case law, as under today's USSC rulings, and therefore both the legislature and executive branches could play off this unequal footing and seek to game the courts

Nominating Lower Court Justices

Both the Federal District Court Judges Wiki, and the Federal Appellate Court Justices Wiki are considered Article III Judges, even though the District judges were created by Congress, as opposed to the Constitution. They are appointed by the President and confirmed by the Senate for life terms.

  • Judicial review is a power vested in every court of the United States in U.S. law, not only the U.S. Supreme Court. So this answer is inaccurate in that respect. A municipal court judges, a state court trial judge, a state appellate court panel, a federal trial court judge, and a federal intermediate appellate court panel all have the power of judicial review.
    – ohwilleke
    Commented Dec 23, 2016 at 18:51

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .