A Supreme Court Filibuster

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. Orin Kerr says:

    I don’t know if the question is “when does the quorum attach” or rather “whether a Justice can simply refuse to participate and thus count as absent for purposes of the quorum requirement.”

    Incidentally, here’s a recent case in which the quorum requirement mattered: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20SCO%2020110307798.xml&docbase=CSLWAR3-2007-CURR

  2. Gerard Magliocca says:

    Right, that’s a better statement of the issue.

  3. Brett Bellmore says:

    It does seem rather lacking in detail, and conspicuously lacks the language most constitutions match up that quorum requirement for the legislature with, a provision that a number short of a quorum can compel attendance of the rest. (The reason the Wisconsin 14 fled to another state: They had to get beyond the jurisdiction of Wisconsin police, or risk being arrested and brought back in handcuffs.)

  4. Howard Gilbert says:

    Am I missing something here? If four justices believe that a decision should be affirmed, but a majority of five believe that it should be reversed, then if the four justices recuse themselves then based on the previously cited case “the judgment is affirmed under 28 U.S.C. §2109”

    This allows a minority to do through recusal what it cannot do by voting, provided they want to affirm.

  5. Gerard Magliocca says:

    It is curious.

  6. TJ says:

    Even with Orin’s restatement, a minority can often predict at the certiorari stage whether they are going to lose 5-4, and I don’t think there is any way to prevent 4 justices from recusing themselves, even in bad faith. I would guess that Gerard’s nightmare has not occurred yet is primarily because it would be so extremely political and violate judicial norms that nobody had thought of this. But given that we live in an increasingly politicized age, and now that the idea has been suggested, however, I would not be surprised to see it happen in an uber-political case, such as a repetition of Bush v. Gore.

  7. Orin Kerr says:


    I don’t think that’s a realistic concern, as Congress would have several ways to stop such shenanigans. First, it could amend 28 U.S.C. 1 to change the quorum requirement. Second, it could bring impeachment and removal proceedings against the Justices who participated. Third, Congress could also change the size of the court, adding or taking away justices to blunt such tactics.

  8. Brett Bellmore says:

    Alternatively, the majority on the Court could be about to issue a ruling Congress didn’t like, in which case Congress would be very happy about the shenanigans.

    I suspect that one of the reasons you don’t see this happening is that, in as much as the Justices are life-time appointees, they have to worry about a long future of reprisals of a like nature. Whereas a legislative minority as in Wisconsin can always imagine that, come the next election, they’ll be rid of the people they’re messing with. Further, since the Justices do not, to a large measure, have control over their own rules, they can’t plan to abuse a rule for temporary gain, and then change it once they’re in the majority.

  9. Gerard Magliocca says:

    To some extent, it shows how important norms of collegiality are.

  10. TJ says:

    Orin, that is why I raised Bush v. Gore as my example. If the minority thinks that if they hold out Gore will win, then none of your nightmares will happen. You won’t get later impeachment because Democrats in the Senate won’t convict. And you won’t get statutory amendment because Clinton would veto the bill. Of course, if Bush ahd eventually won anyway there would be reprisals. But that only shows that if you shoot the king, you better kill him.

  11. PrometheeFeu says:

    Not sure about a Bush v Gore situation. But for most other situation, this would work to advantage of Congress who could pass whatever they wanted without any check from SCOTUS.