« The Eight-Justice Court in the American Mind | Main | The (Second) Warren Court? »

Monday, June 13, 2016

Eight-Justice Arguments

As we face the last few weeks of the term, one of the talking points among some lawyers I talk to in Washington has been whether we will see the Justices enter into the debate about there being only eight Justices on the Supreme Court more and more significantly. Adam Liptak had a piece in The New York Times noting the general public statements the Justices have made about an eight-Justice Court.  Will any of the Justices find some way in some case to make reference in their opinion to there being only eight Justices? Or will they say something in public about this--maybe something generic like the need for compromise is greater at some times in the history of the Supreme Court?

I am doubtful this will happen, but it is interesting to think about two questions that would be raised if it did happen:

(1) Will this change the way the Garland nomination proceeds forward? I am really just expanding here on a point I raised in another post.  If the Court divides 4:4 in a lot of big cases in a short period of time, the media will note that and try to make something of it, which could generate pressure to act on the Garland nomination--but not much heat.  If there is some language from some Justice to support the Divided Court claim, even more heat is generated.

(2) Is it legitimate for the Court openly to act differently because of the eight-Justice Court? Is it better for them to act differently in a way we all know they are doing (like in Zubik) without saying so? On the other end of the spectrum, what about writing opinions calling for different results or styles of reasoning because there are only eight sitting Justices? 

Posted by David Fontana on June 13, 2016 at 11:24 AM | Permalink


The comments to this entry are closed.