Consequences of an Eight-Member Supreme Court, So Far

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By Kimberly Strawbridge Robinson

May 11 — With U.S. Supreme Court oral arguments out of the way, the justices will focus on getting out the remaining opinions and lining up cases for next term.

But the lingering vacancy left by Justice Antonin Scalia will likely affect that work, former clerk to Justice Anthony M. Kennedy Igor Timofeyev told Bloomberg BNA.

From the breadth of the decisions to the pace of certiorari grants, the court's work is complicated by its eight-member composition, Timofeyev, now at Paul Hastings LLP, Washington, said via e-mail.

One unexpected aspect of the court's operation may be affected too: vote breakdowns.

Cert. Grants

Court-watchers anticipated that the court would accept fewer cases following Scalia's unexpected Feb. 13 death.

As the high court vacancy lingers, that prediction seems to be coming to fruition—sort of.

The justices likely haven't departed from their “traditional criteria for deciding when to grant cert.,” such as when the courts below are divided on an issue and “the Court’s intervention is needed to restore the law’s nationwide uniformity,” Timofeyev said.

“At the same time, it’s obvious that with only eight Justices on the Court, it may be more difficult to get the magic four grant votes in a closer case,” he said.

Additionally, “the Justices may be more cautious about granting cert. in high-profile ideologically charged cases, where the Court may end up splitting evenly,” Timofeyev said.

The justices may want to defer “such decisions until the Court is back to full strength.”

With so many factors influencing the certiorari grant rate, it's hard to draw reliable conclusions from the number of cert. grants so far, Timofeyev said.

The court has 12 cases set for next term. That's “on the lower end, but not markedly lower than last year,” he said.

None of them, however, are blockbuster cases like those that dominate this term's Supreme Court docket.

Breadth of Decisions

Another anticipated consequence of an eight-member court is narrowly decided cases.

The justices can try to avoid dividing equally on a case by deciding cases narrowly, former Scalia clerk Richard Bernstein of Willkie Farr & Gallagher LLP, Washington, told Bloomberg BNA shortly after Scalia's passing. The justices will try to decide the case on whatever ground can garner a majority, he said.

Timofeyev agreed. The court will want to provide some guidance to the lower court, “even if that guidance is more limited than it otherwise could have been,” he said.

Therefore, to avoid the possibility of splitting 4–4, the court may issue “more narrowly written opinions, resolving the specific dispute but leaving other issues for another day,” Timofeyev said.

That has already happened—most obviously in Franchise Tax Bd. of Cal. v. Hyatt, 84 U.S.L.W. 4210, 2016 BL 123436 (U.S. April 19, 2016) (84 U.S.L.W. 1536, 4/21/16).

There, the court was asked to overrule its previous decision allowing states to be haled into sister states' courts, Nevada v. Hall, 440 U.S. 410 (1979).

But the court was split evenly on that broad question.

Instead, the court ruled more narrowly that the Constitution requires states to give the other states' agencies the same immunities they would give their own.

Timofeyev noted, however, that the Roberts Court often decides a “particular issue on narrow grounds [the] first time around, before issuing a more wide-reaching decision in a later case.”

The decision in Franchise Tax Board could have reflected that general approach, he said.

Strange Bedfellows

One possible consequence of the high court vacancy wasn't widely anticipated: diverse vote breakdowns.

The court has handed down 16 cases this term that weren't unanimous or evenly divided (the court doesn't release the vote breakdown in evenly split decisions). Those 16 cases have produced 15 unique vote break downs.

It may be that the eight-member court is creating some interesting bedfellows.

But “[c]orrelation does not necessarily mean causation,” Timofeyev cautioned.

“We’ve seen ‘strange bedfellows' in the Court’s decisions before,” even with the court at full strength, he said.

But it is probably true as a general rule that every time the court’s composition changes, it creates different dynamics in the justices’ relationships, Timofeyev said.

That may, in turn, “find reflection in the voting lineups.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com