The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Justice Felix Frankfurter: Temporarily having an eight-justice Supreme Court is not 'sacrificing a single interest of importance'


In 1945, Justice Robert Jackson took an extraordinary one-year leave of absence from the Supreme Court to serve as chief prosecutor at the war crimes trials in Nuremberg. He did so despite objections from Chief Justice Harlan Fiske Stone. Stone opposed the idea of war crimes trials as ex post winner's justice, thought it unseemly for a justice to serve as a prosecutor, and, most relevant to current news, believed that Jackson's absence put an unfair burden on his colleagues. In Jackson's absence, the court split 4-4 on several cases, leading Jackson to consider returning to the court to break the deadlocks.

Justice Felix Frankfurter, however, encouraged him to stay, which he did. Frankfurter noted that the court often reschedules cases and told him that his absence was not "sacrificing a single interest of importance" (Bruce Allen Murphy, The Brandeis/Frankfurter Connection 305, citing Letter, FF to Jackson, January 16, 1946, FF/HLS Box 170, Folder 2).

If the court could manage with eight justices in 1945-1946, when it had a much more onerous workload than it has today, it can manage for a year or so now. There may be good arguments that the Senate should confirm an Obama nominee this year, but the notion I see circulating that it would somehow be unprecedented and dysfunctional to temporarily have only eight justices on the court isn't one of them.

(H/T: Jacob Cohen)