The Effects of an Eight-Justice Supreme Court. Since Justice Scalia’s passing in February, the Supreme Court has operated with only eight justices, and it will continue to do so for as long as the Senate declines to consider a nominee. Having only eight justices undoubtedly will have an impact on the Court’s decisions. These effects are likely to be most profound in politically-charged cases, and less so in the cases that are most relevant to the business community.
The Constitution provides that the President “shall nominate,” and “by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court,” U.S. Const. art. II, § 2, but does not provide for a specific number of justices. In passing the Judiciary Act of 1789, Congress established a Supreme Court with six justices—a chief justice and five associate justices. As the United States expanded and Congress established new judicial circuits, Congress added more justices. In 1807, Congress added a seventh justice and in 1837, an eighth and a ninth. In 1863, Congress grew the Supreme Court to ten justices, corresponding to establishment of the Tenth Circuit. Congress then reduced the size of the Court to seven justices in the 1866, but only three years later passed the Judiciary Act of 1869, which created independent circuit judgeships and enlarged the Supreme Court to “consist of the Chief Justice… and eight associate justices, any six of whom shall constitute a quorum.” The Court has had nine justices—and a six-justice quorum rule—ever since.
While lengthy Supreme Court vacancies were commonplace in the 19th Century (one vacancy lasted 841 days), there have been only two extended periods during which the Court functioned with only eight justices in the 20th or 21st Centuries, until now. The longest such vacancy occurred when Justice Fortas resigned in May 1969. The resulting vacancy lasted 391 days until Justice Blackmun, who was appointed by President Richard Nixon after the Senate rejected two prior nominees, was sworn in. The second-longest lasted 237 days following Justice Powell’s retirement in June 1987. His successor, Justice Kennedy, was appointed by President Ronald Reagan, again after the Senate rejected his first two nominees.
If Congress does not vote on Judge Merrick Garland’s nomination to the current Court, the vacancy caused by Justice Scalia’s death will likely be the longest since the 19th Century—Justice Scalia died on February 13, 2016, and the next president’s term will not even begin until late-January, 2017. Many if not all of the cases on the Court’s docket for the October 2016 term would be argued and decided with only eight justices. And out of 93 total cases on the docket for the October 2015 Term, only 21 were decided before Justice Scalia’s passing. This means that, if Congress refuses to act on Judge Garland’s nomination, the vast majority of cases heard in the October 2015 and 2016 Terms are likely to be decided by an eight-justice court. And that creates the possibility of a four-four tie, resulting in an affirmance by equally divided vote—a decision lacking precedential force which may leave important circuit splits unresolved. Indeed, as Justice Scalia himself wrote, an eight-Justice Supreme Court raises the “possibility that, by reason of a tie vote, [the Court] will find itself unable to resolve … significant legal issue[s] presented by [a] case.” Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 541 U.S. 913, 915 (2004) (mem. of Scalia, J.).
The Court appears to have deadlocked three times already since Justice Scalia’s passing. The first apparent split came in Friedrichs v. California Teachers Association, No. 14-915. Described as “the most important labor union controversy to reach the Supreme Court in years,” Friedrichs presented the question whether requiring public employees who do not join a union to pay “agency” fees—fees used to cover costs incurred by the union—violates the First Amendment. Ultimately the Court divided evenly and the Ninth Circuit’s decision upholding agency fees was affirmed in a one-sentence, per curiam ruling.
Later in the Term, the Court split evenly in another politically charged case, United States v. Texas, No. 15-674. There, the Court considered the constitutionality of an Executive Branch program permitting unauthorized immigrants who are the parents of citizens or lawful permanent residents to apply for work permits and avoid deportation. A number of states challenged the program as violating the Take Care Clause by failing to “faithfully execute” laws passed by Congress. Because the case ended with a tie vote, the Fifth Circuit’s ruling, which affirmed a preliminary injunction enjoining the program, remains intact.
Another case that received considerable publicity, Zubik v. Burwell, No. 14-1418, resulted in a per curiam opinion that commentators speculated was also the result of a 4-to-4 tie. Zubik presented the question whether federal regulations under the Affordable Care Act requiring employers to cover certain contraceptives as part of their health plans, unless the employer provides notice of religious objection to the insurer or the Federal Government, violated the Religious Freedom Restoration Act. Rather than resolve that issue, the Court took the unusual step of vacating and remanding in light of a “feasible” compromise which “the parties on remand should be afforded an opportunity” to consider.
But it appears that the Court’s shorthandedness is more likely to affect politically-charged cases than ones involving traditional business litigation issues. In what are probably the highest-profile business litigation cases from the October 2015 Term—the consolidated Stryker Corp. v. Zimmer, No. 14-1520, and Halo Electronic v. Pulse Electronics, No. 14-1513, cases—the Court unanimously struck down the Federal Circuit’s two-part test for enhanced patent damages as inconsistent with the text of 35 U.S.C. § 284. In another patent litigation case, Cuozzo Speed Technologies v. Lee, No. 15-446, the Court unanimously affirmed the United States Patent and Trademark Office’s “broadest reasonable construction” standard for construing patent claims in inter partes review proceedings. And in RJR Nabisco v. European Community, the Court unanimously held that RICO applies to conduct outside the United States where the predicate act forming the basis of the RICO violation itself occurs outside the United States. If the unanimous portions of the Court’s decisions in Stryker, Halo, Cuozzo, and RJR Nabisco are any indicator, a deadlock in other cases that could have profound effects on business litigation—but which are not the most politically charged—appears unlikely.