Today, Justice Stephen Breyer cut through Democrats’ talking points about the Supreme Court’s ability to function.
When Justice Breyer was asked if Scalia’s absence will negatively affect the Supreme Court’s ability to decide cases, Breyer “downplayed that possibility”:
“We’ll miss him, but we’ll do our work,” Breyer said during an appearance at the Newseum in Washington. “For the most part, it will not change.”
Justice Breyer pointed out that relatively few cases are actually decided 5-4:
“The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent,” observed Breyer, an appointee of President Bill Clinton.
Justice Breyer is not alone in his opinion that an eight person Supreme Court can function properly. Justice Samuel Alito made similar comments this week as well, noting that in the past the court had an even number of justices by law.