28 U.S.C. § 2109

Quorum of Supreme Court justices absent

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If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title.

In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.

Notes of Decisions

Cited in 33 cases, 1950–2019 · leading case: United States v. Hatter, 532 U.S. 557 (2001).

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United States v. Hatter, 532 U.S. 557 (2001). · cites it 4× “801 (1996); see 28 U. S. C. § 2109 . *565 On remand from the Court of Appeals, the Court of Federal Claims found (a) that the 6-year statute of limitations, see 28 U.”

United States v. Will, 449 U.S. 200 (1980). “Even if all Justices are disqualified in a particular case under § 455, 28 U. S. C. § 2109 authorizes the Chief Justice to remit a direct appeal to the Court of Appeals for final decision by judges not so disqualified.”

In Re Claus Von Bulow, Martha Von Bulow, by Her Next Friends Alexander Auersperg, & Annie Laurie Auersperg-Kneissl v. Claus Von Bulow, 828 F.2d 94 (2d Cir. 1987). “”), aff'd by absence of quorum pursuant to 28 U.S.C. § 2109 , 459 U.S. 1191 , 103 S.”

United States of Am., Plaintiff—appellee v. Fritz Arlo Looking Cloud, Defendant—appellant, 419 F.3d 781 (8th Cir. 2005). “2d 141 (1987), aff'd for lack of quorum under 28 U.S.C. § 2109 , 485 U.S. 264 , 108 S.Ct.”

In Re South African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009). “2d 225 (2008) (affirming under 28 U.S.C. § 2109 ). [40] See Ntsebeza Complaint ¶ 6 n.”

Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008). “§1 , and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109 , which provides that under these circumstances the Court shall enter its order…”

Arizona v. United States Dist. Court for the Dist. of Arizona, 459 U.S. 1191 (1983). “§ 1 , and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment and order are affirmed under 28 U. S. C. §2109 , which provides that under these circumstances “the court shall enter its…”

Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983). “§ 1 , and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment and order are affirmed under 28 U. S. C. § 2109 , which provides that under these circumstances “the court shall enter its…”

United States v. Janet Woodley, 751 F.2d 1008 (9th Cir. 1985). “28 U.S.C. § 2109 (1982); see also United States v.”

Haig v. Bissonette, 485 U.S. 264 (1988). “§ 1 , and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment of the United States Court of Appeals for the Eighth Circuit is affirmed under 28 U. S. C. § 2109 , which provides…”

Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010). · cites it 2× “[18] If the situation in Chrysler arose today, the Court could instead remit the case to a court of appeals as provided by 28 U.S.C. § 2109 , but that statute had not yet been enacted in 1941.”

United States Ex Rel. Stephen Radich v. The Crim. Court of the City of New York, 459 F.2d 745 (2d Cir. 1972). “That Congress does not consider an affirmance by an equally divided court to be an actual adjudication of the merits is corroborated by its enactment of another provision of the Judicial Code, 28 U.”

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