A Supreme Court Filibuster

With the recent walkout in the Wisconsin Senate still fresh in our minds, I’m wondering about the following problem.  A federal statute (28 U.S.C. s. 1) provides that six Justices constitute a quorum.  Suppose that in a given case four Justices refuse to participate any further because they are outraged at the draft opinion circulated by the majority.  Can they effectively filibuster that opinion until it’s withdrawn?

I think one question is when does a quorum attach.  Is it when the cert petition is voted on?  When oral argument happens?  When a case is discussed in conference? When the opinion is handed down?  Do you have to boycott all cases and petitions that are pending, or can you do it selectively?  I don’t know.

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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.