Acknowledgment to Concurring Opinions, where Gerald Magliocca ponders the prospect of 4 justices being able to filibuster, and thus prevent the Supreme Court from issuing a particular decision. Absolutely fascinating prospect in this day and age of reactionary judicial decision making from the Extreme Right. It could serve, at a minimum, to moderate or limit certain decisions. Yes, I know … in the event that there was ever a Warren Court redux, the same type of filibuster could be used to prevent progressive decision making. Yet, the Warren Court never presented such extreme right-wing thinking in its ranks. Plus, I would think that those on the Court would be able to use this potential filibustering power with extreme discretion. Certainly, it should have been used in cases like Citizens United and Bush v. Gore, as well as a couple of recent decisions — Connick and Arizona Christian Schools. Perhaps even better yet, it should be considered as a sword to be wielded to prevent the Four Horsemen of Reaction (plus Kennedy) from further undermining campaign finance regulation in McComish. Read on ….
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 Can they effectively filibuster that opinion until it’s withdrawn?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.