When the Supreme Court Lacks a Quorom
[Guest post by DRJ]
A litigant from California won’t have his case heard by the Supreme Court according to this Jonathan H. Adler post at the Volokh Conspiracy:
“Today’s order list had this interesting item:
09–1318 — HENDERSON, GLENN C. V. SONY PICTURES, ET AL.
Because the Court lacks a quorum, 28 U. S. C. §1, and since the only qualified Justice is of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Stevens, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.”
Apparently Plaintiff Henderson had previously sued 8 of the 9 Supreme Court Justices — all but the newest, Justice Sonia Sotomayor — and those 8 essentially recused themselves from the case. Thus, from the comments:
“Jim M. says:
28 USC 2109 provides:
“If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of [six] qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title.
“In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”
The latter provides the means by which Justice Sotomayor, acting solo as the only qualified justice (not having been sued by the party), was able to dispose of the case.
How many times has that happened? “Henderson v. SONY Pictures” may well be the only instance.
And … Will Mr. Henderson sue Justice Sotomayor next?“