Alito's Thoughts On An Eight-Member Court

Yesterday, Justice Samuel Alito spoke at Georgetown Law on a range of topics, including his take on an eight-member court.

"It will be a new experience," said Alito in response to a student's question about sitting on an eight-member court, and possibly a frequently 4-4 court, for a year or more. "There's nothing in the Constitution that specifies the size of the Supreme Court" and there were times in the history of the court when it had an even number of justices, he pointed out. Alito joked, "It must have been more agreeable in those days."

"What happened in the last week has been a great shock to us, and we just started back in business hearing arguments yesterday, so we'll see what develops." Alito spoke at G'town in conversation with Dean William Treanor as part of the Annual Dean’s Lecture to the Graduating Class. (The inaugural lecture featured Justice Elena Kagan.)

What type of diversity is lacking on the Court and should be sought in Scalia's successor? Alito—after he made clear that's an Article Two question, not an Article Three question, and joked that he has enough trouble with the questions that he has to decide—mentioned the professional backgrounds of justices, who tend to, in the US, be generalists. (On a lot of foreign courts, there are justices and judges who specialize, Alito said.)

"This morning, for example, we heard a patent case. I never did any patent work whatsoever until I became a Supreme Court justice. And yet, now I'm in the position of deciding issues of patent law," he said. "I don't know that this is something that a president would necessarily aim for, but if it turns out that there are justices who have backgrounds in some of these different specialized areas, that would be somewhat beneficial."

The camaraderie of Supreme Court justices, despite their ideological differences, has lately been much discussed.

That comes down to the justices' respect for one another, Alito said, and their effort to separate their opinions on the law from anything personal.

Some rituals reinforce that civility. The justices all shake hands before they come out on the bench, and before every conference. They also have lunch together on every argument day, something that Justice Sandra Day O'Connor pushed for. During lunch, they have a rule: You cannot talk about cases.