When there’s a vacancy on the Supreme Court, as there is now, the court calls on Court of Appeal justices to fill in temporarily for cases to be argued and decided. But Supreme Court customs raise the question, what’s the point?
The court’s Internal Operating Practices & Procedures state, “When it is known after a case is granted but before argument that a justice for any reason is unable to participate in a matter, the Chief Justice . . . assigns on an alphabetical rotational basis . . . a Court of Appeal justice to assist the court in place of the nonparticipating justice.”
However, the assignment comes after a majority of the permanent justices have already tentatively agreed to a disposition of the case. The Practices & Procedures also provide that the court holds a “pre-argument conference . . . to identify those cases that appear ready for oral argument” and a case will be discussed at such a conference only when a “ ‘majority’ calendar memorandum [i.e., a tentative decision] has been approved by at least four justices or is likely to be approved by four justices at the conference.”
Thus, a short-handed court will normally not schedule a case for argument if the justices are tentatively evenly split on a decision and where a pro tem would thus likely cast a deciding vote. (See here.)) And pro tems are typically not assigned until a case is argument ready. For example, for the upcoming March calendar, two pro tems were assigned two days after the cases were calendared for argument and one was assigned the day before the case was calendared, but all three were likely assigned only after at least four of the permanent justices had approved a majority calendar memorandum.
If a pro tem justice isn’t involved in a case until after at least a majority of the permanent justices have agreed on a disposition, what purpose does the pro tem justice serve? Why not just decide the case with six justices?
(Things are different for conferences that decide what cases the court will hear. Unlike scheduling a case for argument, the court doesn’t have the option of indefinitely postponing action on a petition for review, which has a maximum 90-day deadline for ruling (rule 8.512(b).) If there are three, but only three, votes for review, a pro tem justice is necessary to break the tie. (See here.)
