What happens if more than three Supreme Court justices are suddenly killed or incapacitated?
It isn’t a very nice thought, but it’s brought up today by The Wall Street Journal in a piece about the problems with government succession schemes.
The article notes that while the executive branch has a plan of succession (thought its constitutionality has been questioned), no such plan exists for the judiciary. If there was ever mass death or incapacitation on the Supreme Court, the wheels of justice would grind to a halt:
At least there’s a plan for the executive branch. Nothing similar exists for the Supreme Court, which, in order to function, is by law required to have a quorum of six justices. In the event that more than three justices are killed or incapacitated, the Court would be effectively suspended until the president nominated, and the Senate confirmed, successors. Unlikely? Consider this: On the morning of the terrorist attacks of Sept. 11, 2001, the Judicial Conference of the U.S., a group that includes the Supreme Court justices and the chief judges of the federal appeals courts, was meeting at the Supreme Court, a block away from the Capitol building, which was targeted. “That’s where United 93 was headed,” says Mr. Ornstein, referring to the United Airlines flight that crashed near Shanksville, Pa.
Pretty scary stuff – but not entirely true. While the Judicial Conference is headed by the Chief Justice of the United States, the Supreme Court’s other justices are not members, and would not have been at the meeting. But they are often together for conferences and oral arguments at the Supreme Court building, which is just across the street from the Capitol building.