To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: July 6, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court (End-of-Term Supplement)

About a month before the end of the Supreme Court Term that concluded in late June, Justice Ruth Bader Ginsburg commented that “eight” is “not a good number for a multi-member court.”  That statement echoed the words of many of her present and former colleagues on the Court and other federal courts. This includes the late Justice Antonin Scalia himself, who wrote in 2004 that proceeding with eight justices “impairs the functioning of the Court.”   This was also a key finding of our report earlier this year, entitled Material Harm to our System of Justice: the Consequences of an eight-member Supreme Court.

In fact, the last month of the Supreme Court’s Term has proven Justice Ginsburg and Justice Scalia correct. In two important cases decided in June – including a significant crucial case on immigration affecting literally millions of people across the country – the Court was unable to issue a decision on the merits and tied 4-4, leaving the lower court decision in place but setting no national precedent. In total, the number of 4-4 splits by the Court this Term was the largest in more than 30 years.  This end-of-Term supplement strongly reinforces the conclusion of our original report: “having a short-handed Court for an extended period of time is harmful to the proper functioning of the Court and to the nationwide rule of law.”

Key findings from the supplement, which can be read in full here:

In United States v. Texas, the 4-4 split resulted in:

• Leaving millions of undocumented immigrants and their families in limbo.
• The lack of precedent on the scope of the executive branch’s discretion under the nation’s immigration laws and the standing of states to bring suit in court.
• Uncertainty over how federal courts in other parts of the country can address the legality of President Obama’s policies.

In Dollar General Corporation v. Mississippi Band of Choctaw Indians, the 4-4 split resulted in:

• Continued uncertainty over whether or not Tribal courts have the authority to offer redress when one of their members is harmed by a nonmember.
• Continued uncertainty over whether or not businesses and individuals subject themselves to Tribal jurisdiction by operating or doing business on American Indian Reservations.

Additional problems posed by an eight-justice Court, include:

• The lack of a full Court in considering requests for immediate stays of lower court decisions or for injunctions temporarily blocking laws especially regarding voting rights challenges as the 2016 elections approach.
• A more limited range of cases accepted so far by the Court for consideration during the 2016-2017 Term.

For more information on the effects of an eight-member Court as exemplified by the Supreme Court’s decisions in June 2016, please see Supplement: Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.

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