Mark Sherman has this article for AP.
Is eight enough?One paragraph in the article needs correction, though.
The Supreme Court has managed to function effectively at less than its full nine-member strength for two extended periods in the past 50 years. The question now is whether the death of Justice Antonin Scalia in the middle of the court term and a polarizing presidential campaign will make it harder for the justices to get their work done.
The most notable of the deferred cases may have been challenges to the death penalty, according to Bob Woodward and Scott Armstrong's book "The Brethren." Harry Blackmun joined the court in May 1970, after the Democratic-controlled Senate rejected President Richard Nixon's first two choices. It was another two years, after the retirements of two more justices, before the court took up the issue and struck down every state death penalty statute.It was, in fact, two weeks, not two years, "before the court took up the issue."
Harry Blackmun was confirmed by the Senate on May 12, 1970 and commissioned two days later, though he waited until June 9 to be formally sworn in. On June 1 the Supreme Court granted writs of certiorari in two cases to take up the issue of the constitutionality of capital punishment under the unguided discretion statutes then in force throughout the country. See McGautha v. California, 398 U.S. 936; Crampton v. Ohio, 398 U.S. 936.
The Court heard argument on November 9, 1970. Ronald George, future Chief Justice of California, argued the McGautha case for California.
The Court decided the case on May 3, 1971, with its full complement of nine Justices. Justice Harlan, in the opinion of the Court, wrote,
Justices Douglas, Brennan, and Marshall dissented.
Yet less than two months later, the Court granted writs of certiorari in three cases to consider the constitutionality of the death penalty again. They were Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, 403 U.S. 952. The Court heard argument January 17, 1972, with the legendary Charles Alan Wright arguing the Branch case for the State of Texas. Justices Black and Harlan had retired in September and both died before the Furman argument. Justices Powell and Rehnquist had joined the Court in December, but the three months that the Court had only seven Justices came in the space between certiorari and argument when vacancies have little or no effect.
On June 29, 1972 the Court said 5-4 exactly what it found it impossible say in 1971. The personnel change was not the reason. Justices Stewart and White from the McGautha majority changed their votes in Furman v. Georgia, 408 U.S. 238 (1972). The decision was a brief statement by the Court followed by five widely varying individual concurrences, leaving legislatures nationwide to scratch their heads in puzzlement over how to fix their statutes. Along with being a massive flip-flop, it was the worst institutional failure in modern Supreme Court history. It was a failure to perform the function that is the Court's entire reason for being, to bring coherence to federal law.
So that's the sorry history. The grant of certiorari in McGautha may have been delayed for Justice Blackmun's arrival, but vacancies have nothing to do with any further delays from that point. There weren't any further delays.
The Court heard argument on November 9, 1970. Ronald George, future Chief Justice of California, argued the McGautha case for California.
The Court decided the case on May 3, 1971, with its full complement of nine Justices. Justice Harlan, in the opinion of the Court, wrote,
In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.Justice Black concurred separately:
Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power.I have always loved that line. Perfect.
Justices Douglas, Brennan, and Marshall dissented.
Yet less than two months later, the Court granted writs of certiorari in three cases to consider the constitutionality of the death penalty again. They were Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, 403 U.S. 952. The Court heard argument January 17, 1972, with the legendary Charles Alan Wright arguing the Branch case for the State of Texas. Justices Black and Harlan had retired in September and both died before the Furman argument. Justices Powell and Rehnquist had joined the Court in December, but the three months that the Court had only seven Justices came in the space between certiorari and argument when vacancies have little or no effect.
On June 29, 1972 the Court said 5-4 exactly what it found it impossible say in 1971. The personnel change was not the reason. Justices Stewart and White from the McGautha majority changed their votes in Furman v. Georgia, 408 U.S. 238 (1972). The decision was a brief statement by the Court followed by five widely varying individual concurrences, leaving legislatures nationwide to scratch their heads in puzzlement over how to fix their statutes. Along with being a massive flip-flop, it was the worst institutional failure in modern Supreme Court history. It was a failure to perform the function that is the Court's entire reason for being, to bring coherence to federal law.
So that's the sorry history. The grant of certiorari in McGautha may have been delayed for Justice Blackmun's arrival, but vacancies have nothing to do with any further delays from that point. There weren't any further delays.
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