- Associated Press - Thursday, May 26, 2016

SARATOGA SPRINGS, N.Y. (AP) - Supreme Court Justice Ruth Bader Ginsburg said Thursday that having only eight high court justices isn’t good, resulting in some 4-4 splits this year that denied litigants an opinion.

That that means no precedents are set and essentially a Supreme Court review has been denied, Ginsburg told a gathering of court officials in upstate New York.

One case this year was a First Amendment challenge to mandatory union fees by California teachers, Ginsburg said. The Supreme Court’s 1977 precedent - a ruling in a Detroit teachers’ case, which requires workers contribute to the cost of collective bargaining -“will survive at least until there are nine justices,” she said.

Another case the court didn’t decide concerned a challenge to mandatory contraceptive coverage under the Affordable Care Act on the grounds that it violated religious freedom, Ginsburg said. The eight justices requested additional briefs then sent the case back to an appeals court.

“Eight is not a good number,” she said. “Next year I anticipate reporting on the decisions of a full bench.”

The court has had eight members since February, when Justice Antonin Scalia died, leaving a vacancy.

President Barack Obama has nominated Judge Merrick Garland to fill Scalia’s seat, but Republicans in Congress have vowed not to hold hearings or a confirmation vote until a new president takes office.

On Wednesday, Chief Justice John Roberts said building a consensus among the justices is important, although he admitted he can’t do it on his own.

The justices have struggled to reach decisions in several cases this term with the court split evenly between conservative and liberal members.

On Monday, Justice Stephen Breyer said the court has not been diminished by having only eight members. He suggested that Scalia would have made a difference in only four or five cases out of more than 70 the court will decide this term.

Ginsburg, 83, who addressed the Second Circuit Judicial Conference, followed her formal remarks with an open discussion with U.S. District Judge Colleen McMahon and Appeals Judge Denny Chin about her career, advances for women against overt discrimination and remaining bias she called subtle and even subconscious. The talk was interspersed with opera selections sung by Ginsburg’s daughter-in-law Patrice Michaels based on the justice’s opinions and dissents.

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This story has been corrected to show that Supreme Court Justice Ruth Bader Ginsburg said the Supreme Court’s 1977 precedent in a collective bargaining case will survive until there are nine justices, not until the appeals court decision.

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