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Ensuring the Continuity of the Surpeme Court

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Ensuring the Continuity of the Surpeme Court Catholic University Law Review Volume 53 Issue 4 Summer 2004 Article 6 2004 The Least Vulnerable Branch: Ensuring the Continuity of the Surpeme Court Randolph Moss Edward Siskel Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Randolph Moss & Edward Siskel, The Least Vulnerable Branch: Ensuring the Continuity of the Surpeme Court, 53 Cath. U. L. Rev. 1015 (2004). Available at: https://scholarship.law.edu/lawreview/vol53/iss4/6 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE LEAST VULNERABLE BRANCH: ENSURING THE CONTINUITY OF THE SUPREME COURT Randolph Moss' and Edward Siskel++ On March 13, 2002, just six months after the September 11 terrorist attacks on New York City and Washington, D.C., Justice Anthony Kennedy testified at a House subcommittee hearing on contingency planning for the federal government in the aftermath of a terrorist attack.' In assessing whether members of the judiciary should be sequestered in an undisclosed location as part of the "shadow government" along with representatives of the other branches, Justice Kennedy stated: "We wonder about the necessity [of being part of the shadow government]. All . district and circuit judges are courts of general jurisdiction and can issue writs under the All Writs Act. So we are already dispersed nationwide.", 2 During a hearing of the Continuity of Government Commission held on September 23, 2002, Judge Robert Katzmann echoed Justice Kennedy's comments, stating that "[t]he Federal judiciary, unlike the other branches of government, is dispersed across the nation and so it does not confront the same kinds of issues that3 this Commission will consider with respect to the other branches., Justice Kennedy's and Judge Katzmann's assessments of the Supreme Court's vulnerability in a post-9/11 world are typical of the general attitude toward the Court in the continuity of government discussion thus far. In the conversation after September 11 about ensuring the continued functioning of our political institutions during a national emergency, the Supreme Court has often been treated as the least vulnerable of the three branches of government. + Partner, Wilmer Cutler Pickering Hale and Dorr LLP. Mr. Moss previously served as the Assistant Attorney General for the Office of Legal Counsel at the U.S. Department of Justice. ++ Associate, Wilmer Cutler Pickering Hale and Dorr LLP. ' 1. Charles Lane, After September 11 h, Judiciary Rethinks the Unthinkable, WASH. POST, Apr. 12, 2002, at A29. 2. Id. 3. The Continuity of Government Commission, 2002 CONTINUITY GOV'T COMMISSION PROC., available at http://www.continuityofgovernment.org/pdfs/020923 transcript.pdf (Sept. 23, 2002) [hereinafter Continuity Commission]. Judge Katzmann noted, "it is worth considering the consequences of an attack on the Supreme Court even if at the end of the day we were to conclude that present arrangements serve us ... better than the other alternatives." Id. 1015 1016 Catholic University Law Review [Vol. 53:1015 While there are clear reasons why we might be less concerned about the Supreme Court, some of which were mentioned by Justice Kennedy and Judge Katzmann, and others which will be discussed below, it is not self-evident that the Supreme Court and the federal judiciary can readily weather a crisis of the sort that we must now contemplate after September 11.4 Although federal courts are dispersed nationwide and power within the judiciary is decentralized, the full force and uniformity of federal law depends on the continued functioning of the Supreme Court. The absence of the Supreme Court at a time of national crisis- though not necessarily debilitating to the federal judiciary-could exacerbate the crisis. The question becomes: Do we need to worry about the continuity of the Supreme Court? This article answers that question with a measured yes, and then analyzes possible solutions to the problem both in terms of their constitutionality and their soundness as a matter of public policy. Part I of this article raises the question of whether there is a continuity problem for the Supreme Court at all. Although the death or incapacity of four or more Supreme Court Justices would leave the Court without the quorum necessary to hear and decide cases, the Constitution already provides mechanisms for filling vacancies on the Court-the Appointments Clause and (at least as a matter of historic practice) the Recess Appointments Clause.5 These mechanisms have served us well for over two hundred years, providing relatively smooth transitions as vacancies on the Court have opened and filled.6 Moreover, history has shown that many controversial cases-including some that involve executive and legislative responses to national crises-took many months, if not years, to reach the Supreme Court. In most of these cases, there is no evidence that the delay in reaching a final resolution, as the issue wound its way through the lower courts, created or exacerbated a constitutional crisis. In fact, there have been times in the Court's history when it was unable to convene for lack of a quorum or for other reasons and the country did not descend into chaos because of the absence of the Court.7 Thus, even if the appointment process is time consuming, we 4. Id. 5. U.S. CONST. art. II, § 2, cls. 2-3. 6. See Thomas A. Curtis, Recess Appointments to Article Ill Courts: The Use of Historical Practice in Constitutional Interpretations, 84 COLUM. L. REV. 1758, 1773-90 (1984). 7. See Continuity Commission, supra note 3 ("[I]n 1811, the Court did not sit for an entire year because there was no quorum. And in 1866 and 1867, there was almost a period of two years where the Court did not sit.., we've survived it."). 2004] Ensuringthe Continuity of the Supreme Court 1017 may have more time than we think to fill vacancies on the Court before the absence of a quorum has any lasting negative impact. Nevertheless, it is likely that a terrorist attack of the magnitude that we are contemplating (i.e., one that would require a plan for the continuity of the three branches of the federal government), and our response to that attack, would present constitutional and statutory questions of a different order and immediacy than anything the courts have faced thus far in our Nation's history. If cases addressing these questions were working their way through the courts at a time when the Supreme Court was unable to exercise its constitutional function, the cost to the legitimacy of the government's actions and the risk to individual liberties could be enormous. Therefore, Part I concludes that there is, in fact, cause for concern about the continuity of the Supreme Court during such a catastrophic event, and the problem is sufficiently serious that we should address it now, before a period of crisis. We are nevertheless aware that the crisis we imagine and seek to avoid is contingent on a confluence of events that are unlikely to occur all at once. The remainder of our analysis, therefore, maintains a healthy skepticism towards designing a solution to a problem that may exist only in the highly unlikely event of a worst case scenario. Part II describes the nature of the problems that could arise in the aftermath of a terrorist attack resulting in the death or incapacitation of several Justices. The problem of continuity of the Supreme Court depends in large part on the impact of the attack on the other branches of government. Because the appointment of replacement Justices requires the advice and consent of the Senate, whether those vacancies can be filled without significant delay depends on whether a quorum exists in the Senate.8 Similarly, the authority of newly appointed Justices might depend on the legitimacy of the nominating acting-President's claim to that office. However, aside from the various permutations regarding the state of the other branches, the core problem remains the same: how to resolve the tension between restoring the Supreme Court to a quorum quickly, while at the same time preserving its legitimacy. In Part III, we consider the various solutions that have been proposed for ensuring the continuity of the Court in a time of crisis. Among those proposals are: (1) imposing a time limit on the Senate's advice and consent; (2) requiring the President to consult with the Senate before making any recess appointments and/or requiring some ideological balance among the recess appointees; (3) lowering the Court's quorum 8. Continuity Commission, supra note 3. 1018 Catholic University Law Review [Vol. 53:101.5 requirement; (4) designating certain offices in advance to fill vacancies on the Court; and (5) creating an intermediate court between the courts of appeals and the Supreme Court to resolve disputes between the circuits and provide a higher authority on questions of extreme national importance. We consider whether these various proposals could be enacted by statute or would require a constitutional amendment. We also evaluate whether the various proposals successfully resolve the tension between timely restoration and legitimacy. Finally, in Part IV, we choose among these options and recommend that Congress pass a statute creating an intermediate court drawn from any remaining Justices and the chief judges of the courts of appeals. This court would convene in times of national emergency when the Supreme Court lacks a quorum as a result of that emergency, and it would exercise limited discretionary jurisdiction over appeals from the courts of appeals and state supreme courts in cases of immediate, national importance.
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