Sometimes when a Supreme Court Justice is out sick, or there's only an even number of Justices currently appointed, the Court makes a tie decision, (which may result in accepting a lower court's decision), making the Supreme Court trial a bit of a waste.

Compare this to the system of alternate jurors, who replace jurors who are disqualified or sick, the better to prevent wasted trials.

If lower court Jury trials are considered important enough to provide alternates, how is it that such a useful practice has never trickled up to the highest court? (e.g. a rotating roster of Justices, such that there'd always be nine available.)

1 Answer 1


Who would determine what judge was rotated into the decision? Consider the case where the alternates are Antonin Scalia, Sandra Day O'Connor, David Souter, John Paul Stephens, and Ruth Bader Ginsburg. It makes a big difference whether the chosen alternate is Scalia or Ginsburg. It makes some difference whether it's O'Connor or Stephens. Note that they were on opposite sides in both Austin v. Michigan Chamber of Commerce and Gonzales v. Raich.

With a jury, remember that it takes a unanimous vote. It is therefore unlikely that the alternate would be a member of a group that is partisan on the question of that particular case. To make it more unlikely, the presiding judge allows the parties to disqualify jurors for cause (and usually a limited number without cause). It's not strange for a juror pool to start with a hundred candidates or more that are whittled down to fifteen or so. Where would the Supreme Court get a hundred alternates? And who would "preside" as judge?

Note that it is the appeals courts that oversee that process for unfairness. One reason that a case could be sent back for a new trial is that the presiding judge could have show lack of impartiality in jury selection. The Supreme Court has no such review. They are the final review.

The current system already allows for alternates in its own way. The lower court decision is the fallback decision. And a later decision with a different set of justices can make a distinct choice on the undecided issue. That way the justices may be chosen in the normal manner.

It's also rather unlikely for a Supreme Court decision to be tied. It can happen but it seldom does. I know of no examples of a sick justice preventing a decision. They'd just reschedule arguments. It only happens in the case of recusal or after a justice dies until a replacement can be seated. And it's not like nothing happens in that case. There is a default decision available for that case. It's just that it doesn't set precedent for other cases or resolve circuit splits.

Contrast with jury trials. Those are the original trial. Absent the alternate, you may have eleven jurors for conviction or acquittal who are blocked from a decision by one missing juror. Without an alternate, the trial would be declared a mistrial and they'd just do it over again. Having an alternate or three saves selecting twelve new jurors and redoing the entire process. It should not change the decision one way or the other. However the alternate votes, it is unlikely to change from conviction to acquittal or vice versa. At worst, it might change a mistrial to a decision.

In those cases where it does change a mistrial to a decision, then chances are a new trial would have given the same decision. Because apparently one juror was blocking the other eleven. Without that specific juror, the decision was obvious. The chances of a second trial having the same issue are low.

The Supreme Court renders final decisions (or makes decisions final by refusing to overturn them). As such, its decisions need to be as grounded as possible. Creating a mechanism of alternates would increase its ability to come to a decision without making the decision any more infallible.

If this were really that important, then the correct way to fix it would be for a justice to choose her or his own replacement. Scalia might have picked Gorsuch. Then there would have been no delay in pick a replacement. Similarly, if Gorsuch were an alternate, then he could have replaced Scalia if Scalia felt the need to recuse himself. Meanwhile, Stephen Breyer might pick Merrick Garland as his alternate and replacement.

Of course, to make any such change would require a constitutional amendment. Those are difficult in such partisan times. And they weren't considered necessary earlier. The battles over nominations didn't use to be so partisan. Stephens and Souter may have been known as liberals on the court, but they were appointed by Republicans as were the swing votes, O'Connor and Anthony Kennedy.

If you're wondering how I made my five picks for alternates, I picked the current three living retired justices plus the two oldest justices active in 2015. I picked 2015 because Scalia makes a better example for this purpose than Kennedy, currently the second oldest judge.

  • This: "to make any such change would require a Constitutional amendment." Nov 25, 2017 at 20:32
  • Good point about Jury unanimity. Justices picking their own alternates seems to address the problem of minimizing sudden ideological shifts nicely. (I had imagined something like a chronological "hour hand analog clock" system, where each sub is placed in order of appointment on an advancing clock. Another method, if one goal was to smooth out sudden generational shifts, would be to appoint some larger pool of full Justices, not acting as subs, but as a full rotating roster, [something like one of those watches or clocks that shows phases of the moon], advancing by one justice per trial.)
    – agc
    Nov 26, 2017 at 22:43
  • @jeffronicus, The practicality of actual reform isn't part of the Q. It's more about whether such a method would be a bad thing in of itself, or if it's already been done, or thoroughly debunked somewhere, or did OK, and whatnot...
    – agc
    Nov 26, 2017 at 22:47
  • @agc The question asks "how is it that such a useful practice has never trickled up to the highest court?" so I think the practicality of the change is a key issue. I would clarify, though, that most of the details of the working of the Supreme Court are not set by the Constitution -- which establishes SCOTUS and broadly defines its role -- but by federal statute. And since 1869 the law has specified that the court consist of 9 judges. Nov 27, 2017 at 3:19
  • @jeffronicus, I mean "how is it that" not in the sense of "why hasn't it", but rather "why do we do it this way, not that way". Similarly, "how is it that unicycles are less widely adopted than bicycles?", isn't necessarily a cry for reform. It's not about the notion's feasibility or probability, but rather its relative utility.
    – agc
    Nov 28, 2017 at 5:22

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