Monthly Archives: February 2016


Someone is wrong on the Internet, and for once, I’m going to try to correct them.

First, I was shocked to hear that Justice Antonin Scalia had died. Regardless of your politics, it’s important to realize that one doesn’t become a supreme Court justice without being very intelligent and having some serious legal credentials. The members of the supreme Court have an incredible level of power (and responsibility) to shape our laws, our legal system, and our government. I respect all of them, and realize that they may see issues from a different perspective than I do, and that just because we disagree, it doesn’t make either of us stupid, or even necessarily wrong.

Regarding a replacement justice, I think it’s important that the President and the Senate look for someone they can agree on, and put them on the court before the end of the election cycle. The Majority Leader’s announcement that he does not intend to consider a replacement until next January smacks of the same obstinace that’s kept Congress from doing much useful for the last few years.

Now comes the part where I try to fix the discussion on the Internet.

  1. To say that SCOTUS is “designed to function with 9 justices, not 8”, is simply wrong. The constitution simply says that there will be a supreme Court. It implicitly leaves the size of the court to be determined by Congress. The court historically has ranged in size from  six to ten justices. The quorum (number of Justices that have to be present to do anything) has varied from four to six [1]. The current configuration is one chief justice, 8 associate justices, any six of whom constitute quorum. The court isn’t “designed” to function with any particular number of justices, but if it were, I’d argue that the number is 6, not 9.
  2. To say that Senate Republicans are trying to “take Obama’s Presidential powers away from him” is disingenuous, or at the very least, misleading. The constitution makes it clear that the the President’s power to appoint comes from the Senate[2]:

[The President]… by and with the Advice and Consent of the Senate… shall appoint… Judges of the supreme Court

The wording “by the Consent of the Senate”, suggests that the power originates with the Senate. It limits the power to choose appointees to the President, but makes it clear that he can only do that if the Senate lets him. Senate Republicans aren’t taking the President’s constitutional powers, they’re exercising theirs.

If you’re going to complain about our leaders ignoring or violating the constitution, you would do well to actually know what it says first. Don’t expect me to care about your argument if you don’t.

[1] Judiciary acts of 1798, 1807, 1837, 18631866, and 1869.
[2] Article II, Section 2, Paragraph 2