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Justice Stephen Breyer says that the Supreme Court doesn’t need a new justice before November, but we don’t really need one ever, really. In fact, there’s historical precedent to not appoint ANY new jurists over the next four years following Antonin Scalia’s death in February.

“The court, when it began at the time of the Constitution’s writing, had six members. They had six members for several years,” Breyer told MSNBC’s “Morning Joe” earlier this week. “They functioned with an even number of members.”

While campaigning for Republican Senate candidate Darryl Glenn in Colorado, Sen. Ted Cruz, R-Texas (A, 97%), concurred with Breyer, telling reporters,“There is certainly long historical precedent for a Supreme Court with fewer justices […] That’s a debate that we are going to have.”

Breyer, a staunch progressive, was trying to allay the concerns that having an even-numbered bench is insufficient for the body to do its job. This is in contrast to Justice Ruth Bader Ginsburg, who stated in May that evenly divided court cases, which effectively uphold the lower circuit’s decisions, are “essentially the same as denial of review.”

But the historical precedent goes much further than whether or not an even-numbered SCOTUS can still function. Congress has the ability and historical precedent to block the possibly future Pres. Hillary Clinton from making any judicial appointments during her tenure.

At one point in the 19th-century, Congress did just that to President Andrew Johnson.

In 1866, Congress passed the Judicial Circuits Act, which prohibited Andrew Johnson, a Southern Democrat and former slaveholder, from appointing justices that might have gutted crucial Reconstruction provisions from the bench. Johnson had already begun to implement his own Reconstruction plan without Congress’ input. After all, he had already allowed and encouraged former Confederate officials to run for offices in readmitted states, while warning states against ratifying the emancipation amendments.

The nation had just come through one of the most traumatic and uncertain moments in its young history, and now it no longer had Abraham Lincoln at the helm. Rather, it had Johnson — chosen as a political token meant to appeal to Southern anti-secessionists in the election of 1864 — now set on pursuing his own unilateral agenda. Hence, Congress did the only thing it could do to prevent Johnson’s nominees from hindering the fragile Reconstruction process from the bench.

The Judicial Circuits Act, passed by a Republican Congress which later overrode Johnson’s veto, gradually limited the number of Supreme Court justices to seven, which would be decreased from the 10 justices in 1863. Further, the number of federal circuits were reduced from 10 to 9.

While the 10-justice, 10-circuit setup approved just three years prior provided Lincoln with a more “convenient” situation politically, the judicial regime became a problem for Congress when Johnson assumed office and began work on his own Reconstruction agenda. “Republicans saw a stronghold of political power pulled out from underneath them,” according to the Seton Hall Circuit Review.

Johnson would eventually be impeached by the House of Representatives for, among 10 other charges, violating the Tenure of Office Act when he suspended Secretary of War Edwin Stanton for opposing his Reconstruction agenda. A year later, the Judiciary Act of 1869 would bring the Supreme Court to the nine-jurist body seen the past 147 years.

But, more importantly, the point remains that Congress, perceiving a threat to the future of the Republic, used its constitutional powers to block the executive branch from appointing new judicial nominees for an entire presidential administration. Now, though the political terrain is different, Congress is faced with yet another collusion between the judicial and executive branches that could prove disastrous for the future of the republic.

Where Congress was once presented with the prospect of an out-of-control executive who sought to implement his own Reconstruction plan without the legislative branch, now both houses face a dichotomy. They face a presidential candidate who at least manages to promise to appoint constitutional originalists, and the other who only promises to take the judicial branch further away from the framers’ vision of the Supreme Court.  

Indeed, the kind of potential jurists that Hillary Clinton has outlined is possibly the furthest thing from the framers’ vision laid out in Federalist 78 and more. As I have previously stated, it is like a high-powered, unaccountable, oligarchic weapon. (Well, the court may be accountable to a President Clinton, given her camp’s now-documented history of trying to intimidate the Chief Justice over Obamacare.)

Making a similar case at The Federalist, Cato Institute fellow Ilya Shapiro concedes that he’s “not sure such a position is politically tenable — barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president — but it’s definitely constitutional.” Of course, what has this election cycle yielded aside from truly and extraordinarily dismal circumstances for those who believe in the Constitution and the federal system?

Despite the pointed criticism, fear-mongering, and finger-wagging toward those who’ve suggested that the judicial embargo should last well into the next Congress, should the GOP hold the Senate under a Clinton presidency, the upper chamber would have every right and reason to continue its current course of action.

After all, as Justice Breyer explained, we’ve had even-numbered courts before, and we did just fine with them.



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Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, jihadism, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMadden_IV.

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