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Reframing the Confirmation Debate

The Supreme Court is home to nine Justices. Over the past one hundred and fifty years, there has been no variation in this number, except due to vacancies caused by death or retirement. Therefore, people have had little reason to believe that there is any flexibility in this arrangement. But nothing in the Constitution fixes the Supreme Court at this size. In fact, the size was set to seven Justices in 1866. It was placed at ten in 1863. Thus, the number of seats can be quite malleable. It was not until 1869 that Congress set the size to the nine seats that we are accustomed to today.

During the recent Supreme Court vacancy—caused by the death of Justice Antonin Scalia—and the ensuing unwillingness of the Senate to hold confirmation hearings, the issue of the Supreme Court’s size, and the duties (if any) of the other branches of the federal government to maintain its size, have come under intense scrutiny. The role of partisan politics in the Senate’s seemingly intransigent position not to hold confirmation hearings during the remainder of President Obama’s presidency exacerbates this public debate.

This Essay seeks to reframe the current debate from whether or not the Senate should be obligated to hold confirmation hearings without delay to why immediate confirmation hearings are so important for some and such an anathema to others. It does so by looking at how a Supreme Court of nine helps the Court fulfill its constitutional duties while also considering how nine Justices may actually thwart the Court’s objectives. This Essay proceeds by examining how ideological polarization among the Justices, and not the Court’s size, is the source of current (and past) tension. It also examines how the orientation and effect of the current polarization are antithetical to a well–functioning Supreme Court.