One of the U.S. Supreme Court’s liberal justices says an evenly divided court is functioning just fine—and would continue to do so if it faced another Bush v. Gore case.
“The court, when it began at the time of the Constitution’s writing, had six members. They had six members for several years,” said Justice Stephen Breyer in an interview on MSNBC. “They had 10 members for several years after the Civil War. They functioned with an even number of members.”
The court currently has eight sitting justices following the death of Antonin Scalia in February. Senate Republicans have not held hearings for President Barack Obama’s nominee, Merrick Garland, currently a judge on the U.S. Court of Appeals for the D.C. Circuit.
When asked what a case like Bush v. Gore might mean for an evenly split court, Breyer said he preferred not to talk about hypotheticals but also dismissed any potential adverse effects. Bush v. Gore was decided in 2000 in a 5-4 decision.
“Half of our cases are unanimous,” Breyer said. “The 5-4 cases are probably 20 percent, and it isn’t the same five and the same four.”
Breyer added that even when a decision is unanimous, it is still significant for the court.
“I would say that a lot of those unanimous cases are also very important,” Breyer said.
In regard to the functioning of the court, Breyer said that it is business as usual.
“When a case comes to the court, people file a brief, they write briefs, we read them, we have oral arguments, and we make up our minds,” Breyer said.
He emphasized that proceedings would remain the same.
“The inside story of a court is normally no inside story. What you see is what you get,” Breyer said.
The Heritage Foundation’s John Malcolm was wary about what a high-profile case such as Bush v. Gore might mean for the eight-member court.
“Let’s hope it doesn’t come to that,” Malcolm said. “Justice Breyer is correct that only 20 percent, roughly, of the cases that come before the Supreme Court end up in 5-4 decisions, but it would certainly be bad for the country if a case involving a national election became one of those cases.”
“We have been down that road before, and it was an extremely bumpy ride,” added Malcolm, who is the director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies and the Ed Gilbertson and Sherry Lindberg Gilbertson senior legal fellow.
Breyer isn’t the first sitting justice to weigh in on the court’s current makeup of eight justices.
Justice Samuel Alito had a similar outlook in February.
“We will deal with it,” Alito told an audience at Georgetown University Law Center.
But not all justices are alike in their thinking. Justice Ruth Bader Ginsburg said in August that eight justices “was not good enough” for the court to make rulings on several cases, including a stalemate on Obama’s contentious immigration plan.
“When we are evenly divided, it is equivalent to denying review,” Ginsburg said. “There were important issues in these four cases that we were unable to decide, and they will come back again and one of them was the president’s immigration policy.”
The U.S. Constitution does not specify the number of justices for the court, and two Republican senators have recently suggested the vacancy could remain even after a new president takes office.