One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.
From LAT.
Yep.
But for now one must consider that if we have another Bush v Gore, which we had no business ever having in the first place, Trump SCOTUS appointee could be involved. Also, if there is no appointee, a SCOTUS 4-4 decision could be rendered.
Then, it's "say hello to my little friend Civil War"!
The part I find confusing is that SCOTUS ties have meant that a case reverts to the lower court decision. But where does it go when there is no lower court involved?
Clause 2 of Article III of the Constitution explains:
Original and Appellate Jurisdiction
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Which I already knew, and does not answer my question at all. When SCOTUS has original jurisdiction on a disputed POTUS election, and has empaneled an even number of justices, and TIES, how would that be resolved? Would there be a ninth official who steps up and breaks the tie? Would the SC farm it out to an appellate court that has an odd number? What happens if there are disputed results in multiple states? Basic point: somewhere there needs to be an odd-numbered court that cannot tie.
No, there is no extra official. There is no appellate court to send it to.
It happens more frequently than people seem to guess that there is an even number of justices. We had 8 for 14 months between Scalia's death and Gorsuch's approval. This makes the whole "it is urgent for the sake of the country..." line laughable.
We have had even numbered SCOTUS terms on multiple occasions in the past, set that way by Congress. Indeed, it
started with six justices, dropped to five by John Adams in a lame duck session to try to constrain Jefferson. The new president and new Congress returned it to six, where it sat as the formal maximum for a whopping six years, when Jefferson and Congress bumped it up to seven. (He had a good reason.) 30 years later, it rose to 9 for the first, but not last, time. It was briefly at 10, after a vote in 1863, but reverted to 9 not long later.
Not every case that they deadlock on is left to the prior decision. Instead, they will hold it over until the next term. This happens even when they have a lower court decision they could allow it to revert back to. This happened with the Oklahoma case, if I am not mistaken.
Disputed presidential elections have not yet initiated with SCOTUS, the few that there have been. There was a prior court decision in 2000, for example, and honestly one that should have held. SCOTUS should have either not granted cert or should have ruled that they did not have jurisdiction.
But if one did and they could not rule, it would first go to the House, thence to the order of succession.
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