Preserving our institutions: the continuity of the Supreme Court

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Introduction

When movies portray a fictional attack on Washington, D.C., the action scenes focus on how the president, the military, and the executive branch respond to that crisis. Left out of the script are the quieter, but no less essential, institutions of government. The Supreme Court (and the federal judiciary as a whole) is one of those institutions. It is true that the Supreme Court will not lead us into battle against our attackers or deliver a speech to comfort the nation, and in normal times, the Court operates on a slower timetable than the other branches. Nonetheless, the United States’ constitutional fabric would be badly damaged if the Court were severely diminished or unable to function because of a terrorist attack. A nation stunned by an attack might also find itself without a final tribunal to resolve fundamental constitutional issues at a time of crisis.

The purpose of this paper is to lay out some of the difficulties that would follow an attack on the Court and make recommendations for reforms that would allow us to reconstitute the Court under some of the most difficult circumstances.

Norman J. Ornstein is a resident scholar, Jennifer Marsico is a senior research associate, and John C. Fortier is an adjunct scholar at AEI. Thomas E. Mann is a senior fellow at Brookings.

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About the Author

 

Norman J.
Ornstein
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
  • Phone: 202-862-5893
    Email: nornstein@aei.org
  • Assistant Info

    Name: Jennifer Marsico
    Phone: 202-862-5899
    Email: jennifer.marsico@aei.org

 

John C.
Fortier

 

Jennifer K.
Marsico
  • Jennifer K. Marsico is a senior research associate at AEI, working in the Political Corner. Her research focuses on elections and election reform, as well as government continuity issues. She is a visiting fellow at the Independent Women's Forum. She is also a contributor to the AEIdeas blog, and has also written for many outside print and online publications, including The Wall Street Journal, Chicago Tribune, and Roll Call. Ms. Marsico serves as assistant director of the AEI-Brookings Continuity of Government Commission, and has contributed to recent studies on Supreme Court continuity, voter registration modernization, and civic participation in the digital age.

  • Phone: 202.862.5899
    Email: jennifer.marsico@aei.org

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