Chief Justice John Roberts could push GOP to replace Antonin Scalia, but probably won't

Will Chief Justice John Roberts push the GOP to replace Justice Scalia?

(Image credit: Drew Angerer/Getty Images)

last updated 25 February 2016

Even if President Obama nominates the sitting Republican governor of a swing state to replace the late Antonin Scalia on the Supreme Court, the Republican-controlled Senate Judiciary Committee probably still won't allow any nominee to get even a hearing, meaning Scalia's seat would sit vacant for at least a year. That will have real consequences for the country, because 4-4 decisions at the high court "essentially decide nothing," says Supreme Court expert Lyle Denniston at the National Constitution Center.

Scalia's absence will be felt nowhere more acutely than at the Supreme Court, and there is some precedent for Chief Justice John Roberts to step in to get Republicans to move on Obama's nominee, Denniston says, citing FDR's proposal to add up to six justices to the court in 1937, purportedly to help the Supreme Court tackle its heavy work load. Denniston explains:

At a strategic point in the Senate's consideration of the plan, Chief Justice Charles Evans Hughes, in a series of private meetings with senators, agreed to write a letter to the Judiciary Committee, explaining that the court was current in its work and needed no additional justices. The letter landed in the committee like a bombshell. Historians, as would be expected, are divided over whether this was the decisive move that ultimately led to the demise of the Roosevelt plan, but it certainly had some impact. [Constitution Daily]

Roberts would be loathe to take such a step, because he wants to present his court as apolitical and perhaps because he may "rather not have an Obama nominee taking the Scalia seat," Denniston said. "All such considerations, however, might begin to lose their force if the eight Justices did, indeed, find themselves stymied in major ways by the continuing effect of one empty seat. Propriety might then have to give way to necessity."

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That's an interesting scenario to consider, but Roberts wouldn't act without consensus from the other seven justices, and at least one of them, Samuel Alito, said Tuesday that if the court has eight justices for an extended period, "we will deal with it." In fact, he added, "there's nothing in the Constitution that specifies the size of the Supreme Court.... There were times in the history of the court when the court had an even number of justices." Which is true, The New York Times says: In 1789, there were six justices — by design — and in 1863 there were 10. "They must have been more agreeable in those days," Alito said.

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Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.

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