united-states us-constitution constitutional-law us-supreme-court
Could the President abolish the Supreme Court?
<p><a href="https://www.law.cornell.edu/constitution/articleii#section2" rel="nofollow noreferrer">Article II, Section 2, of the US Constitution</a> states:</p>

<blockquote>
  <p>[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law[.]</p>
</blockquote>

<p>At some point, most presidents have probably gotten annoyed by something the Supreme Court did. Could the President decide to stop appointing Supreme Court judges, in violation of this duty ("shall"), even to the point where no judges remain?  </p>

<p>This seems like it would be harder to do legally than the Senate abolishing the Court (see question on that over <a href="https://law.stackexchange.com/questions/7188/could-the-senate-abolish-the-supreme-court">here</a>). </p>

<p>Alternatively, could the President satisfy his duty while still reaching the same end by nominating only candidates who (s/)he knows will never be confirmed (e.g. because they are nowhere near qualified)? </p>

<p><em>Could</em> is intended to refer to <em>legally could;</em> political feasibility considerations would be at <a href="http://politics.stackexchange.com">Politics</a>, not Law.</p>

<p>A much narrower related question: <a href="https://law.stackexchange.com/questions/7238/could-president-obama-do-as-sen-mcconnell-says-and-leave-the-scotus-nominations">Could President Obama do as Sen. McConnell says and leave the SCOTUS nominations to the next President?</a></p>

<p>As far as I know, no single president has ever been in office long enough to see all supreme court judges retire, resign or die. So waiving his right to appoint new judges would just achieve two things:</p>

<ul>
<li>He would have less judges in his favor than if he'd just appoint a new one.</li>
<li>He would help the next president, possibly from the other party, who could then appoint more judges to his taste, or possibly reap the rewards by not doing so.</li>
</ul>

<p>I guess no sane president would do that (and no insane president, either).</p>

<p>Shall means shall. It has never been held to mean otherwise and there is no fair reading of this clause that gives the meaning that nomination is optional.</p>

<p>(This part is about political consequences, but if a President did this, they may be impeached or at least not elected again.)</p>

<p>The Court is established by the Constitution, and no President can &quot;abolish&quot; it. However, there is no mechanism to compel a President to make nominations to the court, much less to nominate qualified people. Congress <strong>could</strong> impeach for this, if the House saw fit to pass Articles of Impeachment, and the Senate saw fit to convict.</p>
<p>Historically, when a President (FDR) was sufficiently unhappy with the court, he tried the opposite approach; he requested Congress to increase the size of the court so that he could appoint additional justices and thus secure a majority. There was political opposition, one Justice started to vote differently, and the law was never passed. The cause-and-effect sequence here is not clearly established, however.</p>
<p>See this Wikipedia article <a href="https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937" rel="nofollow noreferrer">Judicial Procedures Reform Bill of 1937</a>.</p>

<p>No.  The Constitution stipulated the Supreme Court.  That is the only one.  It gave Congress the job of setting it up.  The President may not do away with it.  </p>

<blockquote>
  <p>This seems like it would be harder to do legally than the Senate
  abolishing the Court (see question on that over here).</p>
</blockquote>

<p>No. It would be much easier. The Senate can't abolish the U.S. Supreme Court nor can Congress or any law short of a constitutional amendment, although Congress may, by law, limited or modify the jurisdiction of the U.S. Supreme Court. And, the Senate can only prevent the President from making a recess appointment to the U.S. Supreme Court (which would only last for the duration of the legislative session) by not going into recess.</p>

<p>But, the President can very easily decline to nominate new justices. Nothing could stop him. No one could compel the President to appoint someone.</p>

<p>Now, the trouble is that most Presidents are not faced with enough vacancies during their term of service to abolish the Supreme Court (in an eight or conceivably up to ten year term, if the President previously served two years after being elevated from Vice President). By not nominating anyone or by only nominating candidate who will not be confirmed by the Senate, the President is essentially giving his successor more power by freeing up more seats that his successor can fill by nominating someone to fill. So, no President would use that strategy.</p>

<p>Historically, the closest this has come to happening was <a href="https://www.pewresearch.org/fact-tank/2016/02/26/long-supreme-court-vacancies-used-to-be-more-common/" rel="nofollow noreferrer">in 1862</a>.  Three seats on the Supreme Court were vacant (one due to a justice resigning to join the Confederacy), the courts were also in the process of being reorganized so that the Supreme Court justice would no longer double as district judges, and the Senate was out of session from March to December 1861.  President Lincoln therefore thought that nominating replacements was not one of his highest priorities.</p>
<p>However, two of the remaining six justices were in poor health, preventing the court from achieving a quorum of five.</p>

<p>Leaving all of the seats in an appointed court or board vacant, or at least, without a quorum, is not equivalent to abolishing it.</p>
<p>For example, the U.S. Sentencing Commission has not had a quorum, and has hence been unable to conduct business requiring a vote, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/11/president-biden-nominates-bipartisan-slate-for-the-united-states-sentencing-commission/#:%7E:text=The%20Commission%20was%20created%20to,it%20from%20doing%20critical%20business." rel="nofollow noreferrer">since 2019</a>, three years ago. But, the U.S. Sentencing Commission still exists. Similarly, the <a href="https://www.npr.org/2020/12/24/949672803/the-federal-election-commission-can-finally-meet-again-and-it-has-a-big-backlog" rel="nofollow noreferrer">Federal Election Commission</a> went many months without a quorum but it still continued to exist. The federal <a href="https://Merit%20Systems%20Protection%20Board," rel="nofollow noreferrer">Merit System Protection Board</a> has likewise experienced long stretches without a quorum - it is currently <a href="https://fcw.com/workforce/2022/01/mspb-passes-five-year-mark-without-quorum/360604/" rel="nofollow noreferrer">going on five years</a>.</p>
<p>A President's failure to appoint U.S. Supreme Court justices could cause that institution to go temporarily dormant. But, sooner or later, a subsequent President could fill the vacancies.</p>
<p>The lack of successful efforts to compel the President and the U.S. Senate to take action to fill vacancies on these boards and commissions (and the historic reality that many U.S. Courts have had long standing judicial vacancies) also strongly support the conclusion that the failure of the political process to fill U.S. Supreme Court vacancies would be a non-justiciable political question.</p>
<p>Presumably, cases in the exclusive original jurisdiction of the U.S. Supreme Court (e.g. disputes between U.S. states), and the handful of cases in which there is a direct appeal of right to the U.S. Supreme Court (mostly decisions of three judge district court panels on election law issues), would simply be dormant awaiting a quorum so that there could be ruling on the cases, until those cases become moot.</p>
<p>These cases make up on the order of 2% of the U.S. Supreme Court caseload (1-3 cases a year), and rulings on stays of matters pending before the U.S. Supreme Court that have not yet been ruled upon by the full court may be made by a single U.S. Supreme Court justice even in the absence of a quorum.</p>
<p>In the other 98% of cases that are only subject to discretionary review by certiorari or extraordinary writ by the U.S. Supreme Court, the lower court rulings of the U.S. Court of Appeals in question, the state supreme court, or the three judge district court panel for election law issues would stand (at least until the U.S. Supreme Court regained a quorum or the cases became moot).</p>
<p><a href="https://www.washingtonpost.com/politics/2022/05/16/scotus-clerks-roe-dodd-clarence-thomas/" rel="nofollow noreferrer">As it is</a>, &quot;in the 2019-2020 term, the court issued written opinions in the fewest cases of any term in more than a century: 53, compared with 41 during the Civil War.&quot; This is so, even though the Court has nine justices and 36 law clerks, and the most polished and complete briefing of any U.S. court, to help it write these opinions. This year's similarly small docket had <a href="https://thehill.com/regulation/court-battles/3511420-five-biggest-issues-to-watch-at-supreme-court-as-high-profile-term-ends/" rel="nofollow noreferrer">33 cases awaiting a ruling</a> on May 5, 2022 (a 70 year high), and while it is customary for the U.S. Supreme Court to clear its docket for its operating year by July 4, nothing forbids it from simply putting off ruling on all of its remaining cases for another year or two, as it has done in a handful of very well known cases such a <em>Brown v. Board of Education</em>.</p>
<p>It isn't uncommon for cases on appeal to take years to be finally ruled upon in every available forum.</p>
<p>For example, <a href="https://sentencing.typepad.com/sentencing_law_and_policy/2022/06/arizona-completes-its-second-execution-in-2022-for-crime-committed-35-years-prior.html" rel="nofollow noreferrer">the two most recent executions in Arizona</a> involved convictions that were more than three decades old.</p>
<p>So, the practical effect of a Supreme Court without a quorum for an extended period of time wouldn't necessarily even cause a constitutional crisis.</p>

<p>Given the precedent of the 2015 Senate refusing to vote on giving consent on Obama's nomination of Garland to the Supreme Court, there should not be any requirement for the President to do so.</p>
<p>However, as stated in other answers, the impeachment process is unjusticiable, and should Congress impeach and remove a president for refusing to fill a Supreme Court vacancy, it would work. But if (somehow, and for some reason) all successive Presidents decided not to nominate anyone, it would effectively remove the Supreme Court and nobody, short of a constitutional amendment, could do anything about it.</p>
