Could the USA function if the Supreme Court whittled down to 0?

[Dereich]

For the first one there wouldn't be much of a problem; circuit splits aren't usually THAT bad and aren't all resolved by the SCOTUS anyway. Truly urgent questions like Bush v. Gore don't come up very often. We could probably do without a SCOTUS for a decade or two.


Well, if you take away the Federal judiciary I can see three groups that try to fill the vacuum.

-Congress. This is who the founders would have expected to take over the judicial functions if not for the judiciary. It's not exactly unprecedented in US history either; several states (the only one I can think of off hand is Connecticut until 1818) had the legislature serve as the final court of appeals well into the 19th century. Congress would probably attempt to set up some kind of special judicial committee to make rulings on splits between circuits or the States; think of the House of Lords with their law lords.

-The President. I doubt the President would actually try or be able to fulfill judicial functions, but without the check of the judiciary and with all the enforcement power I could see the administrative state bloat even further, taking on more roles which the Federal courts would have declared legislative actions and forbidden. For this, think of the EPA just declaring certain pollutants illegal without Congressional approval or the Dept. of Education creating and enforcing Common Core by itself.

-The States. Without the Federal Judiciary to keep them in check I'm sure lots of the states would try to regain some of the power which has leaked to the Feds over the last century and a half. The first thing I can think of is that it'd mean there would be nobody to enforce the "dormant commerce clause" and there might be attempts by the states to regulate trade coming in from other states or even potentially other countries (I'm thinking of Hunt v. Washington State Apple Advertising Commission where NC tried to use health regulations to restrict apples Washington from advertising their superior quality grades). There would probably be other areas where states would attempt to assert their authority without potential rebuke from the Courts, especially in areas that Congress either agreed with the state decisions or didn't care enough about either way to take action on. It would also essentially restore the pre-substantive due process status quo; the Bill of Rights would only apply to the Federal government and the extent of fundamental rights in state courts would be totally determined by state constitutions.


Overall it wouldn't be DISASTROUS; we'd find a way to make the system work, I'd guess by essentially making Congress the final arbiter in disputes between the states and seriously restricting ability to appeal up to it.