#2. WHAT VACANCY? The number of justices is nowhere to be found in the Constitution. Yes stacking the court was frowned upon after F.D.R. tried to pull that, but there is nothing that requires a certain number of justices. There is no vacancy. Hey, if Trump is elected, the court will become an odd member body again, right?
The law requires 9.
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Size of the Court
Article III of the United States Constitution does not specify the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.
In 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine,[67] where it has since remained.
https://en.wikipedia.org/wiki/Supreme_C ... ted_States