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| Dynamics Are Shifting in an 8-Member Supreme Court | Dynamics Are Shifting in an 8-Member Supreme Court |
| (about 7 hours later) | |
| WASHINGTON — It was February, and Justice Antonin Scalia had just died. Responding to a question about how the Supreme Court would cope with just eight members, Justice Samuel A. Alito Jr. was sanguine. “We will deal with it,” he said. | |
| Now it is April, and it is possible to start to assess how a short-handed court is dealing with its work. | Now it is April, and it is possible to start to assess how a short-handed court is dealing with its work. |
| It has started to deadlock in closely divided cases. That happened twice last month, in a minor case on bank guarantees and a major one on public unions. | It has started to deadlock in closely divided cases. That happened twice last month, in a minor case on bank guarantees and a major one on public unions. |
| “With almost 50 cases still on the docket for the term, the Supreme Court could set a record for most tie votes,” said Justin Pidot, a law professor at the University of Denver and the author of a study of Supreme Court deadlocks to be published in the Minnesota Law Review. “No term since 1990 has included more than two tie votes, a benchmark the court has now hit in a single week.” | “With almost 50 cases still on the docket for the term, the Supreme Court could set a record for most tie votes,” said Justin Pidot, a law professor at the University of Denver and the author of a study of Supreme Court deadlocks to be published in the Minnesota Law Review. “No term since 1990 has included more than two tie votes, a benchmark the court has now hit in a single week.” |
| Such ties give rise to a judicial anticlimax. The court issues an unsigned opinion containing a single sentence: “The judgment is affirmed by an equally divided court.” | Such ties give rise to a judicial anticlimax. The court issues an unsigned opinion containing a single sentence: “The judgment is affirmed by an equally divided court.” |
| That means the appeals court decision under review remains in place. The Supreme Court itself sets no national precedent, and a legal issue important enough to have warranted a scarce spot on the court’s docket remains unresolved. | That means the appeals court decision under review remains in place. The Supreme Court itself sets no national precedent, and a legal issue important enough to have warranted a scarce spot on the court’s docket remains unresolved. |
| But these deadlocks are just one aspect of a new judicial dynamic, one that threatens to limit the court’s reach. | But these deadlocks are just one aspect of a new judicial dynamic, one that threatens to limit the court’s reach. |
| The court’s docket, already small by the standards of recent history, seems poised to shrink even further. In 1986, when Justice Scalia joined the court, it decided about 175 cases. In his last full term, which ended in June, the number had dropped to 75. | The court’s docket, already small by the standards of recent history, seems poised to shrink even further. In 1986, when Justice Scalia joined the court, it decided about 175 cases. In his last full term, which ended in June, the number had dropped to 75. |
| It takes four votes to add a case to the court’s docket, and simple math suggests that with one vote fewer available, fewer petitions will be granted. The justices, moreover, will be unlikely to vote to hear cases fated to end in the waste of time that is a 4-to-4 split. | It takes four votes to add a case to the court’s docket, and simple math suggests that with one vote fewer available, fewer petitions will be granted. The justices, moreover, will be unlikely to vote to hear cases fated to end in the waste of time that is a 4-to-4 split. |
| In March, the court agreed to hear just two cases. One concerned patents, the other double jeopardy. Neither qualified as a blockbuster. | In March, the court agreed to hear just two cases. One concerned patents, the other double jeopardy. Neither qualified as a blockbuster. |
| Last March, by contrast, the justices agreed to hear nine cases, among them important ones on the death penalty and on sentences of life without parole for juvenile offenders. Another was the banking case that ended in a deadlock last month. | Last March, by contrast, the justices agreed to hear nine cases, among them important ones on the death penalty and on sentences of life without parole for juvenile offenders. Another was the banking case that ended in a deadlock last month. |
| Oral arguments have changed, too. Justice Scalia was the court’s most active questioner, and arguments without him have been somewhat wan and tepid. His jokes were not to everyone’s taste, but they enlivened what can be dry affairs. | |
| “Scalia was in a whole other league when it came to getting laughs at oral argument,” said Jay D. Wexler, a law professor at Boston University and a leading authority on Supreme Court humor. “If the court were a high school baseball program, Scalia was the ace of the varsity pitching staff, and everyone else played third-string utility infield for the J.V. squad.” | “Scalia was in a whole other league when it came to getting laughs at oral argument,” said Jay D. Wexler, a law professor at Boston University and a leading authority on Supreme Court humor. “If the court were a high school baseball program, Scalia was the ace of the varsity pitching staff, and everyone else played third-string utility infield for the J.V. squad.” |
| Transcripts of Supreme Court arguments include the notation [laughter] when there is audible levity, and they allow Professor Wexler to keep detailed statistics. In recent weeks, he found, Justice Stephen G. Breyer has generated far more laughs than any other member of the court. | Transcripts of Supreme Court arguments include the notation [laughter] when there is audible levity, and they allow Professor Wexler to keep detailed statistics. In recent weeks, he found, Justice Stephen G. Breyer has generated far more laughs than any other member of the court. |
| “Since Scalia’s death, Breyer has pretty much cemented his position as the new funny guy of the bench,” Professor Wexler said. | “Since Scalia’s death, Breyer has pretty much cemented his position as the new funny guy of the bench,” Professor Wexler said. |
| But the laughs are different now. “Scalia’s humor was basically quip-based, fast one-liners,” Professor Wexler said, “whereas Breyer’s are often connected in some way to his long, circuitous hypotheticals.” | But the laughs are different now. “Scalia’s humor was basically quip-based, fast one-liners,” Professor Wexler said, “whereas Breyer’s are often connected in some way to his long, circuitous hypotheticals.” |
| Justice Scalia’s absence has allowed other justices more room to express themselves, said Adam Feldman, a doctoral candidate in political science at the University of Southern California who used linguistic software to analyze transcripts of recent arguments. | Justice Scalia’s absence has allowed other justices more room to express themselves, said Adam Feldman, a doctoral candidate in political science at the University of Southern California who used linguistic software to analyze transcripts of recent arguments. |
| “Without Justice Scalia consistently inserting himself into the conversation, there was a void for the other justices to fill,” Mr. Feldman said, adding that Justice Sonia Sotomayor had seized the opening. “Justice Sotomayor usurped Justice Scalia’s spot taking the most turns talking.” | “Without Justice Scalia consistently inserting himself into the conversation, there was a void for the other justices to fill,” Mr. Feldman said, adding that Justice Sonia Sotomayor had seized the opening. “Justice Sotomayor usurped Justice Scalia’s spot taking the most turns talking.” |
| Justice Sotomayor and the rest of the court’s four-member liberal wing have gained new power. They tend to vote together, so they can block conservative rulings but can achieve liberal ones if they pick up an additional vote. Such a vote might come from Justice Anthony M. Kennedy, who was at the court’s ideological center until Justice Scalia’s death, or from Chief Justice John G. Roberts Jr., who assigns the writing of the opinion for the court if he is in the majority. | Justice Sotomayor and the rest of the court’s four-member liberal wing have gained new power. They tend to vote together, so they can block conservative rulings but can achieve liberal ones if they pick up an additional vote. Such a vote might come from Justice Anthony M. Kennedy, who was at the court’s ideological center until Justice Scalia’s death, or from Chief Justice John G. Roberts Jr., who assigns the writing of the opinion for the court if he is in the majority. |
| The other conservatives — Justices Alito and Clarence Thomas — have started to cement an extraordinary bond, staking out positions to the right of the rest in a remarkable series of two-man opinions. | |
| They dissented from the court’s decision not to hear a challenge to a Colorado law allowing the recreational use of marijuana. They said the court had acted rashly in reversing the conviction of a Louisiana death row inmate because of prosecutorial misconduct. | They dissented from the court’s decision not to hear a challenge to a Colorado law allowing the recreational use of marijuana. They said the court had acted rashly in reversing the conviction of a Louisiana death row inmate because of prosecutorial misconduct. |
| They dissented from a ruling in favor of workers at a slaughterhouse who had sought overtime pay. They criticized the majority for not going further in handing gun rights groups a Second Amendment victory in a Massachusetts case concerning stun guns. | They dissented from a ruling in favor of workers at a slaughterhouse who had sought overtime pay. They criticized the majority for not going further in handing gun rights groups a Second Amendment victory in a Massachusetts case concerning stun guns. |
| And they added boilerplate concurrences when the court returned more than 40 cases involving juvenile offenders to lower courts. The concurrences recited various grounds on which the courts could still rule against juvenile offenders sentenced to life without parole notwithstanding a January decision that had seemed to give them a fresh shot at eventual release. | And they added boilerplate concurrences when the court returned more than 40 cases involving juvenile offenders to lower courts. The concurrences recited various grounds on which the courts could still rule against juvenile offenders sentenced to life without parole notwithstanding a January decision that had seemed to give them a fresh shot at eventual release. |
| All of those joint opinions from Justices Alito and Thomas were issued over 15 days in March. Monday’s voting rights decision was unanimous, but even there two members refused to endorse the majority’s reasoning: Justices Thomas and Alito. | |
| In February, Justice Alito said the court would have to adapt to the “great shock” of Justice Scalia’s death. “We’ll see what develops,” he said. | In February, Justice Alito said the court would have to adapt to the “great shock” of Justice Scalia’s death. “We’ll see what develops,” he said. |
| What has developed is a court transformed, partly paralyzed and, for now, diminished in the role it can play in the life of the nation. | What has developed is a court transformed, partly paralyzed and, for now, diminished in the role it can play in the life of the nation. |