Cruz Cites “Precedent” For Eight Justice Supreme Court

Sen. Ted Cruz (R-Texas) told reporters this week, “There is certainly long historical precedent for a Supreme Court with fewer justices,” noting that Justice Stephen Breyer “just recently … observed that the vacancy is not impacting the ability of the court to do its job.” Senate Republicans have refused to hold hearings on Merrick Garland, President Obama’s nominee to fill the vacancy left after the death of Justice Antonin Scalia, saying the right to approve a new justice should be reserved for the president elected Nov. 8. But now, with national polls indicating Democratic presidential nominee Hillary Clinton likely to win that office, Cruz and Sen. John McCain (R-Ariz.) have hinted at continued resistance long after January. Senate Judiciary Committee Chairman Charles E. Grassley (Iowa) rebuked such comments, saying, “If that new president happens to be Hillary, we can’t just simply stonewall.”

Republican legal scholars have made arguments for the kind of blockade Cruz seems to suggest, with some envisioning even more extreme scenarios. In The National Review, law professor Michael Stokes Paulsen suggested Congress should shrink the Court from nine to six seats. “A smaller court means diminished judicial activism,” he wrote. And Ilya Shapiro, Cato Institute legal scholar, wrote in the Federalist that, “As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.”