By Jessica Gresko and Mark Sherman
Associated Press
WASHINGTON (AP) — It takes at least six of the nine justices for the court to consider a case.
When financial conflicts or family relations require more than three justices to step aside, federal law leaves the remaining justices just one option: They affirm the lower court’s decision, without setting a precedent on the issue at hand. That’s also what happens when the court is evenly divided.
But an unusual statement from two justices recently suggests the court is looking for an end run around the law in one case.
Justices Anthony Kennedy and Clarence Thomas said the court would put off acting on a long-pending appeal resulting from the Tribune Co. bankruptcy and strongly hinted that lower federal courts in New York that previously ruled in the case should take new action.
“I’ve never seen anything like it before,” said Arthur Hellman, an ethics expert at the University of Pittsburgh
As many as seven of the nine justices might have a conflict in the case, according to Fix the Court, a group that advocates for greater transparency at the Supreme Court. Seven justices appear to hold investments in mutual funds that were on the winning side in the lower courts, it said.
The explanation for the statement is that the high court recently ruled in a separate bankruptcy case that raised an issue that’s also part of the Tribune case. The unanimous court, resolving a split between appeals courts, said in effect that the New York-based 2nd U.S. Circuit Court of Appeals got it wrong.
If the justices were now to turn around and affirm the 2nd Circuit’s ruling in the Tribune case, they would be blessing a decision they already had decided was incorrect.
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