“The minus is, I sometimes think it’s less fun,” he said. “You can’t get the dialogue.”
The last time the court had eight members, after the death of Justice Antonin Scalia in 2016, it set a modern record for consensus. But that court was evenly divided between Republican and Democratic appointees and may have been more inclined to compromise.
Justice Scalia’s seat was vacant for more than a year, while Justice Ginsburg’s seat may be filled in short order, creating a 6-to-3 majority for Republican appointees.
How that majority acts may depend on the election, Professor Epstein said, noting proposals from liberals to expand the size of the court if Democrats win the White House and control of both houses of Congress.
“On the one hand, should the Democrats take control of government, the right side of the court might be wary of doing too much too fast out of fear of court packing, in which case they could lose their majority or worse,” Professor Epstein said. “On the other hand, a Republican win in November might well empower the conservatives to pursue their projects with speed.”
Those projects, she said, include bolstering the role of religion in public life, expanding gun rights, restricting abortion and cutting back on the power of the administrative state.
In the short term, the justices will try to avoid controversy, said Allison Orr Larsen, a law professor at William & Mary.
“In periods of transition, many of the justices — and the chief justice in particular — will try to keep a low profile and stay out of the political spotlight as much as possible,” she said. “It may not always be possible this term, particularly with election disputes on the horizon, but I do think in transition years we should expect the justices to keep their heads down, even if it may not be indicative of long-term behavior.”