When the United States Supreme Court begins its 2016-17 Term in October, the biggest story will not involve a blockbuster case but the still empty seat created by Justice Antonin Scalia’s death last February. Senate Republicans have so far stuck to their pledge that the next President will replace Scalia, and thus have refused to give President Obama’s nominee, Merrick Garland, a hearing. Scalia’s vacancy leaves the Court with four Justices nominated by Republican Presidents and four by Democratic Presidents, and the most liberal Republican (Anthony Kennedy) is by most measures more conservative than the most conservative Democrat (Stephen Breyer).
Most legal pundits and academic Court watchers are not happy with this equilibrium. All summer long, Dahlia Lithwick of Slate has bemoaned the eight member Court and the lack of news reporting on the missing ninth Justice. She suggests that the impasse may lead may lead to a “constitutional crisis.”
On Labor Day, analyst Ken Jost posted the first of what will surely be many other op-eds and blog posts on the new Term lamenting the existence of only eight Justices. He called the Court “dysfunctional” as it “hobbles” toward the new term with the Justices putting off the argument of cases most likely to produce 4-4 ties. Garrett Epps, writing in The Atlantic, said that the Court is operating “at a reduced level…like a cat in a box who is both alive and dead.”
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