Heller Sequels
SCOTUS blog looks at a few prominent post-Heller second amendment cases: On a pace that very likely will put them in the Supreme Court at its next Term, three significant test cases on the scope of the Second Amendment — the “gun rights” Amendment — are moving along in the lower courts.
February 23rd, 2009 at 10:22 pm
I should probably be asking this over at Volokh, but what if:
The cases in question make it to the court.
One of the justices leaves the court, for whatever reason. Let’s say a liberal one.
Oboe, seeing 3 cases he’s going to lose, puts off filling the vacancy until after the court rules 5-3 that he can’t disarm us.
The decision, lacking a 9 judge hearing, establishes no precedent, and we have to start all over.
Or does it work that way.
February 24th, 2009 at 12:39 am
It doesn’t work that way. Nine Justices is a tradition, not a constitutional requirement. It’s not uncommon for one or more Justices to recuse themselves from a case, the only obvious disadvantage being that an even number of Justices ruling on the case means that the decision can end in a tie – which would indeed set no precedent.
February 27th, 2009 at 8:53 am
Hence the FDR attempt to “pack the courts”.