If the U.S. Senate confirms California Attorney General Xavier Becerra as President Biden’s Secretary of Health and Human Services, and if Governor Newsom appoints Justice Goodwin Liu as Becerra’s replacement (both still fairly large “ifs”), the Supreme Court will be down one justice without time to adjust for operating shorthanded.
There shouldn’t be much of a problem for cases that haven’t been argued yet. The Chief Justice can assign Court of Appeal justices to sit pro tem to hear future cases, although the court would likely delay setting for argument any case in which the six permanent justices are tentatively evenly divided (see here, here, and here). And if there’s an even split about whether to grant a petition for review, a pro tem would help out there, too. (See here.)
Cases already argued but not yet decided would be a bit trickier.
When a justice retires, they often do so at the end of August when there haven’t been any arguments for almost three months or they agree to serve pro tem after their retirement date, allowing them to comfortably rule on all cases in which they’ve already heard argument. (E.g., Justices Ming Chin, Kathryn Werdegar, and Marvin Baxter, Joyce Kennard.) On at least one occasion, when the retiring justice gave shorter notice and didn’t agree to serve as a pro tem, the court hurried out opinions before the retirement date to ensure seven-justice decisions. (Justice Carlos Moreno. (See here and here.)
Should Justice Liu be nominated for Attorney General, he likely would no longer rule on any case in which he had heard argument. There’s a good chance he would resign from the court immediately without a pro temming option. Liu is ineligible to be Attorney General, or any other non-judicial public official for that matter, as long as he’s still a sitting judge. (See here and Gilbert v. Chiang (2014) 227 Cal.App.4th 537.) In any event, it wouldn’t look great to have an Attorney General nominee still serving on the court, even as a pro tem, because the Attorney General is the court’s most frequent litigant.
The court would thus probably issue opinions with just six justices in already argued cases. That’s what happened in cases argued but undecided when Justice Stanley Mosk died in office (see, e.g., People v. Cunningham (2001) 25 Cal.4th 926) and when Justice Janice Rogers Brown was appointed to the federal appellate bench (see, e.g., People v. Seijas (2005) 36 Cal.4th 291), which we think are the last times the court had immediate vacancies. Adding a pro tem after argument is not an option because of the constitutional provision that “[c]oncurrence of 4 judges present at the argument is necessary for a judgment.” (Emphasis added.)
In any already argued case with the six remaining justices evenly divided, we’re guessing the court would vacate submission and schedule another argument, but not for a date until after the Governor appoints Justice Liu’s replacement. As with other pending cases, the court would probably want to avoid having a pro tem justice cast a deciding vote.
We can only speculate that the court is already anticipating Justice Liu’s possible resignation, but it might be trying to minimize the headaches should Justice Liu leave for the Attorney General’s job by scheduling lighter-than-usual oral argument calendars recently. The fewer argued-but-undecided cases means fewer six-justice opinions or potential rearguments.
Related:
“Yale Law Classmates Goodwin Liu and Rob Bonta Vie, Through Friends, for Attorney General”