ROGERS, Ark. — Chief Justice John G. Roberts Jr. on Wednesday shrugged off any difficulty the Supreme Court might be having reaching consensus with an equal number of ideologically divided justices.
Roberts seemed careful not to say anything that would aid either Democrats demanding that the Senate vote on President Obama’s nominee, Judge Merrick Garland, or Republicans who say the next president should name the replacement for Justice Antonin Scalia.
At a meeting of judges, he was asked by Judge William J. Riley, chief judge of the U.S. Court of Appeals for the 8th Circuit, about any difficulty the court was having without a full contingent of nine justices.
“Well, you know most of our cases — I don’t think many people realize it — most of our cases are not 5 to 4,” Roberts said at the conference. “It’s a pretty small percentage that are.”
Roberts took less than a minute to address the issue, saying that “sometimes we talk about cases longer to see if we can reach some type of agreement. But that’s it. It’s a great loss, the loss of Justice Scalia, and there are reasons most appellate courts have an odd number of judges. But the process is pretty much what it has been.”
Since Scalia’s death Feb. 13, the court already has said it was deadlocked on several cases. And while it is true that only a small percentage of the court’s cases are decided 5 to 4, the most important ones often are.
And some court experts have said that the court’s pace of accepting controversial cases has slowed, because justices do not want to accept cases for which it cannot provide a definitive answer.
The court now has four consistent liberals and four justices who most often vote on the conservative side.
But in public appearances, the justices have been reluctant to say that the court is having difficulty without a deciding vote.
Roberts was even shy about repeating past comments on how political polarization in Washington was affecting the perception of the court and the judiciary in general.
Riley reminded Roberts of those remarks and asked, “Do you want to expand on that at all?”
“No,” Roberts responded. The crowd laughed, but Roberts did not say more.
Riley told the crowd: “His message was that we’re not political.”
“Well, that is the case,” Roberts said. “All of us who became judges, some have a public service background, but you all know when we take the judicial oath . . . we have a new responsibility, and that’s the responsibility we need to focus on and carry out.”
Roberts was more forthcoming in February, days before Scalia’s unexpected death, when he worried about the public’s perception of the court being influenced by partisan politics, and he said that the problem started with the confirmation process.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms.”
“If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process,” he said at a law school appearance in Boston. “And that’s just not how — we don’t work as Democrats or Republicans.”
The partisan perception is influenced by the fact that for the first time in generations, the court’s conservatives are all Republican appointees, and the four liberals were nominated by Democrats. For decades, there had been at least one liberal Republican nominee or conservative Democratic choice.