On Thursday, Justice Ruth Bader Ginsburg closed her annual address to the Second Circuit Judicial Conference with a surprising prediction: “Eight, as you know, is not a good number for a multimember court,” she told the audience. “When we meet at the Circuit Conference next year, I anticipate reporting on the decisions of a full bench.”
With this remark, Ginsburg becomes the first sitting justice to criticize the court’s current hobbled state—or even to acknowledge that it might have a negative effect on the court’s work. Shortly after Justice Antonin Scalia’s death left the court understaffed, Justice Samuel Alito stoically suggested that the court could “deal with” eight members. And Justice Stephen Breyer recently shrugged off the situation, noting that the justices can still decide most cases without a tied vote. (Breyer is a beneficiary of the current situation; thanks to Scalia’s death, he was able to turn a partial dissent into an opinion for the court.)
Meanwhile, retired Justices Sandra Day O’Connor and John Paul Stevens have both spoken out about Senate Republicans’ refusal to even consider Judge Merrick Garland, President Barack Obama’s choice to succeed Scalia. “I think we need somebody there to do the job now,” O’Connor said shortly after Scalia’s death, “and let’s get on with it.” Stevens was blunter, calling an eight-justice court an “unhappy situation” and urging the Senate to fill the vacancy, “the sooner the better.”
Ginsburg’s brief comment may open the door for other justices to gently question the court’s ability to proceed understaffed—though any attempt to go further than Ginsburg would be fraught with partisan peril. As my colleague Dahlia Lithwick recently explained:
The justices rarely weigh in overtly on Capitol Hill battles and when they do, it always, always hurts the court. Any action it takes that suggests ideological partisanship will hurt the institution. But, ironically enough, the pretense that the institution isn’t broken also hurts the institution. And so the current court careens between 4–4 splits, unanimous narrow orders, and variously styled ducks and punts, in an effort to communicate that it is serenely above partisan politics. It’s an unenviable position for a court: The more zealously it tries to signal that it can do its work shorthanded, the more credibility it lends to Sen. Chuck Grassley’s side of the debate. The court is inadvertently working toward its own diminution.