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Supreme Court Justice Ruth Bader Ginsburg said an eight-member bench essentially has the same effect as the court refusing to hear cases.
“Eight, as you know, is not a good number for a multi-member court,” Ginsburg said Thursday at a New York conference, the Huffington Post reported.
She said next year, “I anticipate reporting on the decisions of a full bench.”
Ginsburg mentioned two cases on which the court has deadlocked without the late Justice Antonin Scalia. In a case about whether unions could collect "fair share" dues from those who don't want representation, the court affirmed a lower court's ruling in favor of the unions. And in a case from religious nonprofits challenging Obamacare's "opt-out" mechanism for contraceptive coverage, the court issued an unsigned, three-page decision that failed to clear up the primary issue and instructed the two sides to reach a compromise.
“That means no opinions and no precedential value,” Ginsburg said, according to a transcript. “An equal division is essentially the same as a denial of review.”
Scalia died in February, and the GOP-controlled Senate has vowed not to hold hearings on President Obama’s nominee to replace him, Judge Merrick Garland.