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.
“It’s a great loss, the loss of Justice Scalia, and there are reasons most appellate courts have an odd number of judges,” Roberts said earlier this month at a meeting with lower-court judges and lawyers in Arkansas. “But the process is pretty much what it has been.”
He expanded a bit on those comments this week to judges and lawyers of the 4th Circuit.
“I try to achieve as much consensus as I can,” Roberts said, according to the Associated Press. “We kind of have to have a commitment as a group. I think we spend a fair amount of time — maybe a little more than others in the past — talking about things, talking them out. It sometimes brings you a bit closer together.”
The court’s pace of accepting cases for next term has slowed, as well, and it has accepted few that are controversial.
Roberts acknowledged “some criticism that you can put things off and you can say, ‘Well, let’s not deal with this issue. Then maybe in five years we’ll get another case if we have to.’ And some people think that’s bad,” the chief justice said.
“I think it has something to do with judicial philosophy,” he said. “I think we should be as restrained in when we decide the issues when it’s necessary to do so. I think that’s part of how I look at the job.”
Ginsburg, like her friend Scalia was, is often more outspoken than her colleagues.
She noted that the court could not settle a First Amendment challenge brought by California teachers who objected to mandatory union fees.
And while it goes down on the books as an unsigned opinion with no dissents, Ginsburg said the court had to kick back to lower courts a major decision on the contraceptive requirement in the Affordable Care Act.
After oral argument, the court put out its own vision of how a compromise between the Obama administration and the religiously affiliated nonprofits that objected to providing the coverage might work. The court said supplemental briefs submitted by both sides showed a middle ground and sent it back for details to be worked out.
There is another loss because of Scalia’s death, Ginsburg said in the prepared remarks, which were filled with stories of their friendship.
“The court is a paler place without him,” she said.