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LET COURT SEAT 10 JUSTICES FOR SHORT TIME To the editor: When Justice Sandra Day O’Connor’s successor is confirmed and O’Connor’s resignation goes into effect, the Supreme Court will enter a transient period. That period will last until all cases heard by the “old” Court (with O’Connor) have been ruled upon. Although there actually will be nine justices on the Court, only the eight members of the old Court will be able to vote on the cases that were argued before the old Court. A 4-4 vote will leave in place the lower court’s decision, although the Court may decide to rehear a case or delay hearing it until the “new” Court is established and all members can hear and vote on it. However, there is another option. Congress could change the number of justices from nine to 10. O’Connor could retain her status as a justice for all of the cases she has heard. The important change would be that, once her successor was confirmed, she would not participate in any new cases and the new justice would. From that date forward, O’Connor’s responsibilities as an associate justice would slowly but steadily decline, and her resignation would be fully effective after all cases she had heard were decided. At no time would there be 10 justices who could hear and decide any case. Changing the number of justices on the Supreme Court would not be a radical action. The Constitution does not specify the number of justices; that is determined by an act of Congress. The Court started with six members and has had seven, nine, and 10 members over its history. A change along these lines could be acceptable to both Democrats and Republicans and could be followed in the future, whenever conditions are appropriate. The value of this option is that there almost always would be nine justices hearing and voting on cases. The 4-4 split would be relatively rare, and likely would be the result of a justice recusing himself from a case. After O’Connor had participated in her last case and her resignation became fully effective, the Court would revert to nine justices. If this option has merit, the critical question arises: Is there time for Congress to hold hearings and act on this question without placing undue stress or pressure on O’Connor? Richard Stoll Kensington, Md.

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