Could the USA function if the Supreme Court whittled down to 0?
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  Could the USA function if the Supreme Court whittled down to 0?
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Author Topic: Could the USA function if the Supreme Court whittled down to 0?  (Read 4302 times)
Blue3
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« on: October 18, 2016, 12:24:52 AM »

Let's say they never fill the vacancy of Scalia's seat.

Or the next vacancy.

Or the vacancy after that.

Etc.



Let's say it actually gets to the point where there are 0 justices left on the Supreme Court.

Could the USA still function?

I know there would still be the federal courts of appeal... but what if they have a significant disagreement on a significant issue?
What if federal law is actually interpreted differently, according to which region your state has been assigned, for the foreseeable future?



(For discussion's sake, let's go a step further with a second question, it's extreme and unrealistic but an interesting What If: what would happen if all court vacancies in the federal court system [courts of appeal, district courts, etc.] went left unfilled and eventually whittled down to 0?)
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Cashew
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« Reply #1 on: October 18, 2016, 10:10:35 AM »
« Edited: October 18, 2016, 10:13:26 AM by Cashew »

It would lead to an executive tyrant the republicans rail so much against.

I mean Andrew defied the court just fine, and in the absence of a judiciary, it would be far easier to justify the president acting on their behalf.
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Dereich
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« Reply #2 on: October 18, 2016, 01:52:55 PM »

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.
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DINGO Joe
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« Reply #3 on: October 20, 2016, 12:51:22 AM »

What would be even weirder would be having one justice.
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White Trash
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« Reply #4 on: October 20, 2016, 07:36:22 AM »

I'd guess by essentially making Congress the final arbiter in disputes between the states and seriously restricting ability to appeal up to it.

In all honesty, I'd prefer this to our current system.
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« Reply #5 on: October 21, 2016, 11:16:14 PM »

Yes, the state governments would get the final say instead of the federal government, which is how it was always meant to be.  I also think state law should supersede federal law unless directly mentioned (in exact wording, no reading between the lines) in the Constitution.
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Torie
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« Reply #6 on: October 22, 2016, 09:47:24 AM »

The federal law would vary between appellate court circuits as the different courts in some cases come to different rulings, with no higher court to reconcile them. In some cases, that might force Congress to pass additional legislation. So it would be difficult and inconvenient, but hardly the apocalypse.
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mencken
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« Reply #7 on: October 22, 2016, 10:59:16 AM »

Ties usually go to the lower court decision, so I imagine the same should be the case if a tie was inevitable due to a vacant Supreme Court.
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SteveRogers
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« Reply #8 on: October 22, 2016, 09:20:55 PM »

The federal law would vary between appellate court circuits as the different courts in some cases come to different rulings, with no higher court to reconcile them. In some cases, that might force Congress to pass additional legislation. So it would be difficult and inconvenient, but hardly the apocalypse.

I think the bigger problem would be that there would be no federal check on state Supreme Court decisions. That's kind of a problem if you're hoping to protect constitutional rights.
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Torie
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« Reply #9 on: October 23, 2016, 06:53:52 AM »
« Edited: October 23, 2016, 06:55:24 AM by Torie »

The federal law would vary between appellate court circuits as the different courts in some cases come to different rulings, with no higher court to reconcile them. In some cases, that might force Congress to pass additional legislation. So it would be difficult and inconvenient, but hardly the apocalypse.

I think the bigger problem would be that there would be no federal check on state Supreme Court decisions. That's kind of a problem if you're hoping to protect constitutional rights.

Good point. But the real problem is not that a state highest court, might get interpreting federal law "wrong" (just like an appellate court), but if the appellate court circuit covering a state goes one way, and the highest state court goes the other way. Then the law is different depending on whether a case goes to state or federal court. Plaintiffs in cases with both state and federal issues would have an advantage, since they would get to pick where to file. If there is only federal issues, the defendant would remove to federal court, and thus the appellate court holding would prevail. So plaintiffs would have a huge incentive if they would win in state court, to find some state issue to litigate along with the federal one.
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Bacon King
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« Reply #10 on: October 24, 2016, 09:17:09 AM »

It actually wouldn't take very long at all to have a functionally nonexistent Supreme Court. Per federal law, the Supreme Court requires a quorum of six Justices present in order to hear and/or decide a case. Once the court is down to 5 it wouldn't be able to do anything*. In such a situation the remaining Justices are allowed to vote on postponing a case until the following term if they think they'll have a quorum then. Otherwise it's the same as if it was a tied court.



* = technically, there is one situation when the Court can act without a quorum. An appeal coming directly from a district court can be remitted to the relevant appeals court so they reach a decision en banc in the Supreme Court's stead.
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Enduro
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« Reply #11 on: October 25, 2016, 08:15:41 PM »

That worries me.
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Attorney General, LGC Speaker & Former PPT Dwarven Dragon
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« Reply #12 on: October 31, 2016, 11:15:06 PM »

Without the Supreme Court? Not particularly smoothly, but yes. Without the entire federal judiciary? In a word, no.

The fact that this possibility is even being discussed shows that we really need to stop picking Supreme Court Justices based on ideology. I could care less about CU, and am fine with a new VRA, but any existing ideas about picking justices who will institute an absolute ban on regulating abortion, and/or who will essentially abolish the 2nd amendment, and/or who will essentially abolish freedom of religion, and/or allow polygamy, honestly needs to stop. That's nothing more than left-wing judicial activism. At the same time, the right needs to shut up any existing rhetoric about finding a judge who will declare ObamaCare to be unconstitutional, or who will declare transgenderism to be a mental illness, or who will place a blanket ban on any sort of regulation on guns, or who will overturn Obergefell. That's nothing more than right-wing judicial activism. (I do believe it is essential that we get rid of Roe eventually, and do not consider that judicial activism) The correct path forward is through centrist judges who will rule based on the law and not based on a political agenda.

Oddly enough, the existing nominee for Scalia's seat could very well be the sort of person we need.

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Figs
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« Reply #13 on: November 01, 2016, 07:01:13 AM »

Without the Supreme Court? Not particularly smoothly, but yes. Without the entire federal judiciary? In a word, no.

The fact that this possibility is even being discussed shows that we really need to stop picking Supreme Court Justices based on ideology. I could care less about CU, and am fine with a new VRA, but any existing ideas about picking justices who will institute an absolute ban on regulating abortion, and/or who will essentially abolish the 2nd amendment, and/or who will essentially abolish freedom of religion, and/or allow polygamy, honestly needs to stop. That's nothing more than left-wing judicial activism. At the same time, the right needs to shut up any existing rhetoric about finding a judge who will declare ObamaCare to be unconstitutional, or who will declare transgenderism to be a mental illness, or who will place a blanket ban on any sort of regulation on guns, or who will overturn Obergefell. That's nothing more than right-wing judicial activism. (I do believe it is essential that we get rid of Roe eventually, and do not consider that judicial activism) The correct path forward is through centrist judges who will rule based on the law and not based on a political agenda.

Oddly enough, the existing nominee for Scalia's seat could very well be the sort of person we need.



Are you honestly saying that judicial activism is defined as everything the court does that you don't agree with?
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SteveRogers
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« Reply #14 on: November 01, 2016, 06:56:24 PM »

Without the Supreme Court? Not particularly smoothly, but yes. Without the entire federal judiciary? In a word, no.

The fact that this possibility is even being discussed shows that we really need to stop picking Supreme Court Justices based on ideology. I could care less about CU, and am fine with a new VRA, but any existing ideas about picking justices who will institute an absolute ban on regulating abortion, and/or who will essentially abolish the 2nd amendment, and/or who will essentially abolish freedom of religion, and/or allow polygamy, honestly needs to stop. That's nothing more than left-wing judicial activism. At the same time, the right needs to shut up any existing rhetoric about finding a judge who will declare ObamaCare to be unconstitutional, or who will declare transgenderism to be a mental illness, or who will place a blanket ban on any sort of regulation on guns, or who will overturn Obergefell. That's nothing more than right-wing judicial activism. (I do believe it is essential that we get rid of Roe eventually, and do not consider that judicial activism) The correct path forward is through centrist judges who will rule based on the law and not based on a political agenda.

Oddly enough, the existing nominee for Scalia's seat could very well be the sort of person we need.



Are you honestly saying that judicial activism is defined as everything the court does that you don't agree with?

In all fairness, that's basically the only way that anybody on either side ever uses that term.
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Figs
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« Reply #15 on: November 02, 2016, 05:29:07 AM »

True. Just not usually that baldly.
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« Reply #16 on: November 02, 2016, 06:11:06 PM »

That would mean that federal courts of appeals are the last resort, right?

Even now, if the SCOTUS refuses to hear the case, the court of appeals' judgement is final.
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Blue3
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« Reply #17 on: November 02, 2016, 10:50:25 PM »

That would mean that federal courts of appeals are the last resort, right?

Even now, if the SCOTUS refuses to hear the case, the court of appeals' judgement is final.
As I said,
its final for all the courts in their circuit, not for the nation, they can disagree.

Also, the second scenario is if the federal courts of appeal eventually aren't filled either.
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I’m not Stu
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« Reply #18 on: November 21, 2016, 11:06:58 PM »

Yes, lower court decisions would stand.
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