Short-Staffed SCOTUS Not “Cost-Free”

With the new U.S. Supreme Court term approaching, and no sign that President Obama’s nominee to fill the Court’s vacancy will get so much as a hearing in the Senate, Justice Elena Kagan told Harvard Law students that “There’s a reason why appellate courts have an odd number of members: So that they can make sure to reach decisions, and they don’t have to confront the ever-present possibility of a tie.” A tie, she said, “does nobody any good. Presumably we’re there for a reason – to resolve cases that need deciding, and to answer hotly contested issues that need resolving. You can’t do that with a tie vote.” Though Kagan gave Chief Justice John Roberts praise for trying to steer the bench toward common ground, she said having just eight members on the Court has been something of a “disability.” “[I]s this cost-free?” Kagan said. “No, it’s absolutely not.”