U.S. Supreme Court Notebook

Ginsburg: Having only 8 justices hamstrings court


SARATOGA SPRINGS, N.Y. (AP) — Supreme Court Justice Ruth Bader Ginsburg said Thursday that having only eight high court justices isn’t good, resulting in some 4-4 splits this year that denied litigants an opinion.

That means no precedents are set and essentially a Supreme Court review has been denied, Ginsburg told a gathering of court officials in upstate New York.

One case this year was a First Amendment challenge to mandatory union fees by California teachers, Ginsburg said. The Supreme Court’s 1977 precedent — a ruling in a Detroit teachers’ case, which requires workers contribute to the cost of collective bargaining —”will survive at least until there are nine justices,” she said.

Another case the court didn’t decide concerned a challenge to mandatory contraceptive coverage under the Affordable Care Act on the grounds that it violated religious freedom, Ginsburg said. The eight justices requested additional briefs then sent the case back to an appeals court.

“Eight is not a good number,” she said. “Next year I anticipate reporting on the decisions of a full bench.”

The court has had eight members since February, when Justice Antonin Scalia died, leaving a vacancy.

President Barack Obama has nominated Judge Merrick Garland to fill Scalia’s seat, but Republicans in Congress have vowed not to hold hearings or a confirmation vote until a new president takes office.

On Wednesday, Chief Justice John Roberts said building a consensus among the justices is important, although he admitted he can’t do it on his own.

The justices have struggled to reach decisions in several cases this term with the court split evenly between conservative and liberal members.

On Monday, Justice Stephen Breyer said the court has not been diminished by having only eight members. He suggested that Scalia would have made a difference in only four or five cases out of more than 70 the court will decide this term.

Ginsburg, 83, who addressed the Second Circuit Judicial Conference, followed her formal remarks with an open discussion with U.S. District Judge Colleen McMahon and Appeals Judge Denny Chin about her career, advances for women against overt discrimination and remaining bias she called subtle and even subconscious. The talk was interspersed with opera selections sung by Ginsburg’s daughter-in-law Patrice Michaels based on the justice’s opinions and dissents.


 

Roberts speaks  on ­diversity ­and consensus


WHITE SULPHUR SPRINGS, W.Va. (AP) — U.S. Supreme Court Chief Justice John Roberts said Wednesday that building a consensus among the justices is important, although he admits he can’t do it on his own.

Roberts’ comments at The Greenbrier resort in West Virginia come as the justices have struggled to reach decisions in several cases this term with the court split evenly between conservative and liberal members. The court has had eight members since the February death of Justice Antonin Scalia.

“I try to achieve as much consensus as I can,” Roberts said. “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.

“But it’s been subject to 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. I think it has something to do with judicial philosophy. 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.”

Earlier this month the court dodged the legal issues in a challenge from faith-based groups over the federal health care law’s birth control requirements.

Roberts also was asked about the diversity of the court. An audience member noted the current justices were products of the same few law schools. Roberts, who attended Harvard’s law school, said that was “unfortunate.”

Earlier this month, presumptive Republican presidential nominee Donald Trump proposed a list of potential Supreme Court nominees to fill Scalia’s seat if he’s elected to the White House. Trump’s list included a more diverse group of judges from a range of law schools and states.

President Barack Obama has nominated Judge Merrick Garland to fill Scalia’s seat, but Republicans in Congress have vowed not to hold hearings or a confirmation vote until a new president takes office.

Speaking on a question about the religious backgrounds of the current justices, Roberts said, “I’m certainly not seeing any evidence of that as making an impact. I haven’t seen any sign that that’s affecting how we do our business.”

Roberts’ talk at a conference of the 4th U.S. Circuit Court of Appeals was filled with lighthearted moments. Asked by appeals Judge J. Harvie Wilkinson to name a satisfying accomplishment in his decade as chief justice, Roberts joked, “serving for 10 years.”

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