MINNEAPOLIS — The U.S. Supreme Court continues to deeply feel the loss of Justice Antonin Scalia eight months after his death, and his empty seat makes it harder for the surviving eight justices to do their job of resolving some of the country’s most vexing legal questions, Justice Sonia Sotomayor said Monday.
Sotomayor, who spoke at the University of Minnesota, noted that the Supreme Court was designed to have nine justices so it can break ties on difficult cases.
“We try to come to decision-making as best as we can,” she said. “Where we can find a very, very narrow way of deciding a case, we use it.”
Sotomayor did not directly address how filling Scalia’s seat has become a divisive issue in the presidential race between Democrat Hillary Clinton and Republican Donald Trump. The GOP-controlled Senate has so far refused to act on Democratic President Barack Obama’s nomination of Merrick Garland to replace the conservative Scalia, saying it should be up to the next president to pick Scalia’s successor.
But those politics have complicated the internal workings of the Supreme Court, which often needs at least five votes to decide a closely contested case. A 4-4 tie means the last lower court decision stands. It also takes four votes for the high court to agree to hear a case. Sotomayor said nearly all the cases the Supreme Court takes involve disagreements between appeals courts in different federal circuits across the country.
“When we take cases it’s because there’s a pressing legal problem that has divided the courts below, and justice across the country is being administered in an unequal way, because courts in different parts of the country are deciding the exact same issue in a different manner,” Sotomayor said.
Letting a “vexing legal question” go unresolved allows that uncertainty over the law to continue, she said. But even a split decision lets the issue get decided and the precedent will be binding across the country, she added. Having a full nine members therefore has “great value,” she said.
“It’s much more difficult for us to do our job if we are not what we’re intended to be — a court of nine,” she said.
Sotomayor spoke to about 2,700 people — mostly lawyers and students — as part of an annual lecture series led by a former dean of the university’s law school, Robert Stein. As is her custom, she spent most of the event roaming the hall and shaking hands with people, not missing a beat as she answered Stein’s questions, which dealt mostly with how she rose from being a diabetic child in a Bronx housing project in New York to become the first Latina Supreme Court justice and only the third woman ever to sit on the high court. She also took questions from the audience.
Attorney Dawn Van Tassel asked a question on behalf of her daughter’s fourth-grade class, where the teacher saw Sotomayor’s visit as a learning opportunity. She asked how to teach young people about civil discourse in an age when she can’t be sure it’s safe for her child to watch the evening news.
What matters, Sotomayor said, is that children learn citizens need to make informed, carefully considered decisions.
“They should be teaching themselves how to think about that choice starting now. Because as they think about it they’ll help you think about it and they’ll help other people think about it more, too,” she said.
Sotomayor wouldn’t disclose how she intends to vote, but she said it doesn’t matter because she gets one vote just like everyone else.