What if there was some kind of terrorist attack where a majority of the Court was killed? Well with less than 6 members, the Court lacks a quorum, and by statute, cannot engage in the business of the Court?
“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”
Perhaps the most provocative and potentially troubling issue highlighted in the report is the president’s power to name several new justices, or even the entire court, without congressional approval for a period that could last a few months or as long as a year and a half.
The Constitution gives the president the power to make what are called recess appointments, temporary appointments to jobs that otherwise require Senate confirmation. Recess appointments only last until the end of the congressional session and can only be made when the Senate is not in session.
If the appointments are made in good faith and after informal consultation with congressional leaders, the temporary justices could allow the court resume its work quickly.
But the authors foresaw more difficulty if the president were expecting challenges to his legitimacy in office or actions he was planning. In that case, “he might fill a court with recess appointees who would be sympathetic to his point of view. He would appoint the court that might then be called upon to be an independent check on the president,” the report said.
A temporary emergency court, set up before a crisis arises, but only coming to life following a catastrophe, would be well placed to deal with urgent court matters in the event the Supreme Court is unable to do its work, the report said.
There is this interesting vignette of what happened to the Court on 9/11.
On 9/11, the Supreme Court building was busy with activity. The Court was not in session, but the Judicial Conference of the United States was meet- ing in the building with Chief Justice William Rehn- quist presiding. Attending the session were justices on the Supreme Court, the chief judges of the fed- eral circuits from around the country, and other leaders of the federal judiciary.
At one point in the morning during the confer- ence, an aide came to the chief justice’s side and whisked him away to a secure location. The remain- ing judges in attendance at the conference would soon hear about three planes crashing into the World Trade Center and the Pentagon killing thou- sands of innocents. But they could not have immediately realized how close they were to the line of fire.
I also recently learned that during the Katrina aftermath, when the federal courts were shut down, thousands of defendants were held for long periods of time without ever being arraigned! No speedy trial or due process rights applied. Some were held longer than the sentence for the alleged crime. Horrid. The continuity of trial courts seems much more important than the continuity of the Supreme Court.