WASHINGTON — A new report from experts on government continuity says a terrorist attack that killed four or more Supreme Court justices would significantly hamper the ability of the entire federal judiciary to carry out its work.
The authors said a diminished Supreme Court would be unable, under federal law, to rule on key issues, including fundamental questions of presidential succession in the event of a catastrophic strike that wiped out the highest levels of the executive branch, Congress and the courts.
They urged relatively minor changes in federal law to allow the courts to keep working, including creating an emergency court that would function only until the Supreme Court had the minimum six justices it needs to hear and decide cases.
The report by the government scholars grows out of the Continuity in Government Commission that was formed after the Sept. 11, 2001 terrorist attacks.
The commission previously made recommendations regarding presidential succession and reconstituting Congress following an attack.
The latest effort is the work of Norman Ornstein and John Fortier of the American Enterprise Institute, and Thomas Mann of the Brookings Institution.
It acknowledged that putting the high court back together would not be as urgent as reconstituting Congress and the executive branch. “But it is a matter that cannot be ignored,” the report said.
Perhaps the most provocative and potentially troubling issue highlighted in the report is the president’s power to name several new justices, or even the entire court, without congressional approval for a period that could last a few months or as long as a year and a half.
The Constitution gives the president the power to make what are called recess appointments, temporary appointments to jobs that otherwise require Senate confirmation. Recess appointments only last until the end of the congressional session and can only be made when the Senate is not in session.
If the appointments are made in good faith and after informal consultation with congressional leaders, the temporary justices could allow the court resume its work quickly.
But the authors foresaw more difficulty if the president were expecting challenges to his legitimacy in office or actions he was planning. In that case, “he might fill a court with recess appointees who would be sympathetic to his point of view. He would appoint the court that might then be called upon to be an independent check on the president,” the report said.
A temporary emergency court, set up before a crisis arises, but only coming to life following a catastrophe, would be well placed to deal with urgent court matters in the event the Supreme Court is unable to do its work, the report said.
Any surviving justices would sit on the court along with other judges chosen from a pool. Decisions of the temporary court could be appealed to the Supreme Court, after it was up and running again.