An eight-Justice Supreme Court

It isn’t especially onerous for the Supreme Court to operate with eight Justices, as we know from earlier vacancies and recusals, note Josh Blackman and Ilya Shapiro [Wall Street Journal] History of election-year SCOTUS nominations and confirmations doesn’t prove what some liberals imagine it does [Roger Pilon; Jonathan Adler and follow-up]

Plus: Wouldn’t it be nice if every Supreme Court nominee were asked to name something he or she thinks is a good idea yet unconstitutional, or, conversely a bad idea that is constitutional? [Trevor Burrus]


  • I’m game:

    Good thing that is unconstitutional: the line item veto (it might help get rid of these omnibus bills).

    Bad thing that is constitutional: laws that regulate small intra-state transactions (under the commerce clause, e.g., the transactions in Wickard v. Fillmore).

  • […] political strategy to maximize press coverage in this way.) Jonathan Adler points out, as have others, that the Senate’s advise-and-consent role does not generate any constitutional duty to […]