The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court

"On February 13, 2016, Justice Antonin Scalia unexpectedly passed away at the age of 79, vacating a seat on the Supreme Court that he had held for nearly 30 years. Supreme Court vacancies that arise in presidential election years rarely occur, and have in the past led to a seat on the Court staying open for extended periods of time. With suggestions that Justice Scalia’s successor may not be confirmed for several months, let alone before the fall election, a possibility exists that Justice Scalia’s seat on the High Court may remain open for an extended period of time, including throughout the remainder of the 2015 Supreme Court term.

While the Supreme Court consists of nine Justices, it does not need nine Justices to decide a case. Instead, Congress has established quorum requirements for the Court, providing that any six Justices “shall constitute a quorum.” By tradition, the agreement of a majority of the quorum is necessary to act for the Court. As a consequence, with an eight-member Court, there is the possibility of split votes, where a majority cannot agree on the outcome in a given case. With several high-profile cases pending on the Court’s docket, including cases on public employee unions, abortion, and immigration, it appears that the Court could become equally divided on a number of matters in the near future..."
Justice Antonin Scalia