later date. For instance, it could begin in the first presidential administration elected after the amendment is approved.
Second, drafters must also determine the timing of appointments. The amendment could specify when during a presidential term the President’s two appointments would arise. If the drafters wished to avoid appointments arising during an election year, they could specify that appointments would arise in years one and three of a presidential term. To avoid disrupting an ongoing Supreme Court term, the amendment could specify that the outgoing Justice’s term ends on a specific date that typically falls after the Court has issued all its opinions in argued cases. The incoming Justice’s term can be made to run from that date, in which case Justices might serve slightly fewer than eighteen years, given the time it would take for confirmation.
Third, drafters must also address how to fill seats that become vacant due to retirement, death, or impeachment before the end of a Justice’s eighteen-year term. Once every Justice has been appointed to an eighteen-year seat, this situation is not likely to occur often. Only one Justice appointed in the last fifty years has served fewer than eighteen years.[43]
We identify three options for how to fill seats that become vacant:
The first is to leave those seats unfilled for the remainder of any retiring Justice’s term, thereby preventing any President from having more than two appointments in a presidential term. That option would leave the Court to function without a full complement of Justices for what might be extended periods; it would also mean the Court would likely have to function for periods with an even number of Justices. The Court has functioned occasionally with an even number of Justices, as it did for fourteen months after Justice Scalia’s death. Some argue that an even-numbered Court encourages the Justices to deliberate more to find common ground, in an effort to avoid leaving the Court unable to decide a case. In addition, the Court would not be able to find state or national action unconstitutional absent greater consensus than a five-to-four decision entails. But a significant cost of having an evenly divided Court is that it could prevent the Court from ensuring that federal law is uniform throughout the country. If the courts of appeals are divided on an issue, for example, there would be no higher judicial authority to resolve that difference if the Court itself is evenly divided on the issue. The same law could be held constitutional in one part of the country and unconstitutional in another.
A second option is that the sitting President, with Senate confirmation, would have the power to appoint a candidate to fill out only the remainder of the original eighteen-year term.
