Now it is April, and it is possible to start to assess how a short-handed court is dealing with its work.
It has started to deadlock in closely divided cases. That happened twice last month, in a minor case on bank guarantees and a major one on public unions.
“With almost 50 cases still on the docket for the term, the Supreme Court could set a record for most tie votes,” said Justin Pidot, a law professor at the University of Denver and the author of a study of Supreme Court deadlocks to be published in the Minnesota Law Review. “No term since 1990 has included more than two tie votes, a benchmark the court has now hit in a single week.”
Such ties give rise to a judicial anticlimax. The court issues an unsigned opinion containing a single sentence: “The judgment is affirmed by an equally divided court.”
That means the appeals court decision under review remains in place. The Supreme Court itself sets no national precedent, and a legal issue important enough to have warranted a scarce spot on the court’s docket remains unresolved.
But these deadlocks are just one aspect of a new judicial dynamic, one that threatens to limit the court’s reach.
The court’s docket, already small by the standards of recent history, seems poised to shrink even further. In 1986, when Justice Scalia joined the court, it decided about 175 cases. In his last full term, which ended in June, the number had dropped to 75."
In the second article by Liptak, he notes a comment by Justice Kagan:
"The Supreme Court, facing the prospect of an extended stretch with an eight-member bench, is “working really hard” to reach consensus and avoid deadlocks, Justice Elena Kagan said on Monday.
There are almost 50 cases left to decide before the justices leave for their summer break at the end of June. Justice Kagan said she and her colleagues were committed to issuing decisions in as many of those cases as possible.
“All of us are working hard to reach agreement,” she told an audience at New York University’s law school. That was true when the court had nine members, she said, but “we’re especially concerned about that now.”
The court has deadlocked twice since Justice Antonin Scalia died in February. “There is a reason why courts do not typically have an even number of members,” Justice Kagan said. “We’ve seen this already.”
But she said Chief Justice John G. Roberts Jr. had risen to the occasion to lead the court through a difficult period.
“I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” Justice Kagan said. “He’s conveyed that in both his words and his deeds.”
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