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Justice Ginsburg Remembers Scalia, Says 8 Isn't Enough for SCOTUS

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By Casey C. Sullivan, Esq. on May 31, 2016 1:07 PM

Justice Ginsburg, speaking at the Second Circuit Judicial Conference last Thursday, said what everyone knows but no justice has spoken aloud until now: when it comes to running the Supreme Court, eight justices aren't enough.

Until now, the Supreme Court justices had largely played down the impact of a vacant seat on the Court -- or they had remained mum. Justice Ginsburg, however, was a bit more forthright in her assessment. In a speech focused largely on her relationship with Justice Scalia, it was obvious how important the two had been to each other; but Justice Ginsburg also made clear that Scalia was not irreplaceable and that the Court was not fully functional with only eight justices.

A "Treasure Trove" of Memories

Justice Ginsburg began her comments to the Second Circuit by pulling from her "treasure trove" of Scalia memories.One of her fondest memories of Scalia, her ideological opposite and close friend, involves Scalia's dissent to United States v. Virginia, the case striking down the Virginia Military Institute's male-only admissions policy.

"I was about to leave the Court to attend the Second Circuit Judicial Conference at Lake George," Ginsburg explained, "when Scalia entered, opinion draft in hand."

Tossing a sheaf of pages onto my desk, he said: "Ruth, this is the penultimate draft of my dissent in the Virginia Military Institute case. It's not yet in shape to circulate to the Court, but I want to give you as much time as I can to answer it."

On the plane to Albany, I read the dissent. It was a zinger, taking me to task on things large and small. Among the disdainful footnotes: "The Court refers to the University of Virginia at Charlottesville. There is no University of Virginia at Charlottesville, there is only the University of Virginia."

"My final draft was much improved thanks to Justice Scalia's searing criticism," she concludes.

The VMI case was one of Justice Ginsburg's most important Supreme Court opinions. Since Justice Thomas's son was enrolled at VMI, he recused himself. It was an eight-justice decision, and Justice Scalia was the only dissent.

Does the anecdote not show that an eight-justice Court can function just as well, with just as much back and forth, as one with nine?

Not exactly. The VMI case was lopsided, a seven-to-one decision. Like most Supreme Court opinions, the justices stood, mostly, together. But Ginsburg follows up the tale of VMI with a discussion of Bush v. Gore. There, the Court was split, dramatically, politically, in a case that wasn't just of major import, but was one of the Rehnquist Court's most significant decisions.

Ginsburg doesn't say it, but the implication is there: had the Court been composed of only eight justices, who knows what would have happened?

Not a Good Number

"Eight, as you know, is not a good number for a multimember Court," Justice Ginsburg concluded. When the Court is evenly divided and deadlocked, "that means no opinions and no precedential value," she explained. Such non-decisions have already been issued in an important union dues case, which Ginsburg noted "was among the terms most closely watched cases." Another "headline case," over the Affordable Care Act and contraception requirements, was similarly punted.

"When we meet at the Circuit Conference next year, I anticipate reporting on the decisions of a full bench," Ginsburg said as she ended her speech.

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