Eight ‘is not a good number’ for the Supreme Court, Ginsburg says
• May 31, 2016
By Robert Barnes, The Washington Post
Her colleagues may be maintaining a stiff upper lip, but Justice Ruth Bader Ginsburg said Thursday that the Supreme Court is being hurt by having only eight justices.
The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.
“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.
“Eight, as you know, is not a good number for a multi-member court,” Ginsburg said in the speech to judges and lawyers gathered for a conference of the 2nd Circuit. “When we meet at the circuit conference next year, I anticipate reporting on the decisions of a full bench.”
Ginsburg’s comments stand slightly apart from those of other members of the court who have played down the problems that a deadlocked court presents.
Senate Republicans have said they will not hold hearings or vote on U.S. Appeals Court Judge Merrick Garland, President Obama’s choice to fill Scalia’s seat, before November’s presidential election.
Ginsburg’s colleagues have minimized any problems created by a shorthanded court, pointing out that only a relative handful of the court’s approximately 70 cases are decided by 5-to-4 votes.
“We may divide 4-4 in four or five cases, we may not,” Justice Stephen G. Breyer said of the term that will end in June.
Chief Justice John G. Roberts Jr. has made similar comments.