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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.