Supreme Court Justice Stephen Breyer on Monday downplayed the idea that a divided court could effect the outcome of the presidential election if one of the candidates challenged the results.
The liberal-leaning Breyer said on MSNBC’s “Morning Joe” Monday he expected the court to function in such a scenario, arguing it has “functioned with an even number of members.” The death of Justice Antonin Scalia has left eight justices on the court, and Senate Republicans have refused to consider President Obama’s nominee to replace him, Merrick Garland.
Donald Trump has refused to say whether he would accept the results of the election, and instead has said he would keep the public “in suspense” about his plans. He has also argued the election is “rigged” against him, and that he reserves the right to pursue legal options depending on the outcome.
Breyer argued that most cases are unanimous and even when one vote makes the difference, “5-4 cases are probably 20 percent and it isn’t the same five and the same four,” in an apparent attempt to reduce the concerns over the ideological sympathies of the justices. He said “depending how you count,” the Supreme Court was split last year in about 4 or 5 cases out of 70 to 75.
However, the Supreme Court split 5-4 in Bush v. Gore, which confirmed the election results and allowed George W. Bush to succeed Bill Clinton in the White House.
When asked if his response meant that he wasn’t terribly concerned about the empty seat at the Supreme Court hypothetically affecting the outcome of the election, Breyer appeared to deflect the question by saying “when you say I’m concerned, I’m trying to give you a picture.”
