Opinio Juris

In a strange move, the Supreme Court on Monday affirmed the ATS Apartheid case of Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza). The stated reason? The Court lacked a quorum. From the docket sheet:

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the 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 Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

Under 28 U.S.C. § 1, "the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." And under 28 U.S.C. § 2109, in any case "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." Apparently four justices had to recuse themselves and therefore the Court lacked the six justice quorum required to decide the case.

If you look at the list of defendants it is perhaps not surprising that many of the justices had a conflict. Still, I have never heard of anything like this in such an important case. Lyle Denniston has more here.