The Quorum Rule

23 Green Bag 2d 103 (2020)

15 Pages Posted: 14 Apr 2020

Date Written: March 19, 2020

Abstract

A quorum is the minimum members of a deliberative body that must be present to transact business. Under 28 U.S.C. 1 and Supreme Court Rule 4.2, the Supreme Court must have six members present to form a quorum. In fact, the very first session of the Court in February 1790 was delayed by a day because only 3 Justices--one short of the 4-justice quorum requirement at the time--were there.

Flash forward to today and it's a different story. On the first Monday in October, 2016, the Court convened with just five Justices, one shy of a quorum. Instead of adjourning to the next day, however, the Court issued orders covering 138 pages of its Journal and heard oral motions to admit 36 attorneys to its bar. And that was no fluke. For over 25 years, the Court has publicly convened an average of twice per term without enough Justices to form a quorum. The paper examines the frequency of non-quorum sessions and what effect the lack of a quorum has on the business the Court appears to have conducted during those sessions.

Keywords: Supreme Court, quorum, Roberts Court, quorum rule

JEL Classification: K40, K41

Suggested Citation

Metzler, Theodore, The Quorum Rule (March 19, 2020). 23 Green Bag 2d 103 (2020), Available at SSRN: https://ssrn.com/abstract=3557512

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