Justice Mariano-Florentino Cuéllar left the court before opinions could issue in two cases for which he had heard oral arguments. That meant that those opinions would either be issued by just the six remaining permanent justices or former Justice Cuéllar would sign the opinions as a pro tem.
We (not-too-confidently) predicted it would be the former, so that the court wouldn’t be using a pro tem justice who is currently privately employed (Cuéllar is now the president of the Carnegie Endowment for International Peace). Turns out the prediction was correct — the two opinions filed yesterday with only six justices participating. (Here and here.)
Both alternatives would have been avoided had the court rushed to file the two opinions before Cuéllar departed at the end of October. We predicted that would happen. (See also here.) That prediction was wrong.
Cuéllar’s retirement will not cause any more six-justice opinions because Court of Appeal justices are filling his seat as pro tems on all currently pending argued cases.
Two six-justice opinions is not a big number, especially when compared to what we think was the last time the court decided cases with less than a full bench.
After Justice Janice Rogers Brown left the Supreme Court in June 2005 to be a federal appeals court judge, the court filed 40 six-justice opinions in July and August of that year. The last one — County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406 — was a bit messy: it had a three-justice lead opinion, two separate concurrences, and one concurring and dissenting opinion.
We’re not confident that the summer of 2005 was the last time the court issued six-justice opinions. Corrections are welcome. In any event, the post-Justice Brown experience demonstrates that the court got off relatively easy this time as far as filing shorthanded opinions is concerned.