I would be very surprised if we don’t spend the next year-plus with at most eight SCOTUS justices.
Every four years we hear that the winner of the presidential election may well play a key role in shaping the composition of the Court for decades to come. This will not be a hypothetical scenario in 2016, as two things seem highly likely: Senate Republicans will not approve anyone President Obama nominates to replace Scalia, and the next president will at the very least end up choosing two Supreme Court justices, if not more (Justice Ginsburg’s departure from the Court prior to 2021 seems practically certain, — she turns 83 next month and is in precarious health — and one or two other current justices may well be gone by then as well).
Obama will surely take into account that an increasingly radicalized and confrontational GOP is not going to allow its senators to approve anyone to the Court that Democrats would consider minimally acceptable. This suggests he will nominate someone whose rejection by the Senate will do maximum damage to the electoral chances of both the Republican presidential nominee, and of the GOP senatorial candidates who will be in competitive races in November.
In fact it’s quite possible that the rejection of Obama’s nominee (or nominees) will become the central issue of the presidential campaign, as we are now poised to spend the next year, if not longer, with a fundamentally deadlocked Supreme Court.
Indeed, it’s well within the realm of possibility that the politics of this situation will play out in such a way that public disgust over how a radicalized GOP reacts to Obama’s nomination(s) ends up playing a crucial role in handing both the presidency and the Senate to the Democrats.
And should that happen, we can then look forward to Hillary Clinton or Bernie Sanders choosing Barack Obama to succeed Antonin Scalia.