§ 2109. — Quorum of Supreme Court justices absent.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 28USC2109]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 133--REVIEW--MISCELLANEOUS PROVISIONS
Sec. 2109. Quorum of Supreme Court justices absent
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.
(June 25, 1948, ch. 646, 62 Stat. 963.)
Historical and Revision Notes
Based on portions of section 29 of title 15, U.S.C., 1940 ed.,
Commerce and Trade, and section 45 of title 49, U.S.C., 1940 ed.,
Transportation (Feb. 11, 1903, ch. 544, Sec. 2, 32 Stat. 823; Mar. 3,
1911, ch. 231, Sec. 291, 36 Stat. 1167; June 9, 1944, ch. 239, 58 Stat.
272).
Section consolidates portions of section 29 of title 15, U.S.C.,
1940 ed., and section 45 of title 49, U.S.C., 1940 ed., with changes of
substance and phraseology.
The revised section includes the principal provisions of sections 29
and 45 of titles 15 and 49, U.S.C., 1940 ed., respectively, in case of
the absence of a quorum of qualified Justices of the Supreme Court.
Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed.,
respectively, were identical and were applicable only to decisions of
three-judge courts in antitrust cases under section 107 of said title 15
and Interstate Commerce cases under sections 1, 8, and 12 of said title
49, ``or any other acts having a like purpose that may hereinafter be
enacted.'' The revised section broadens and extends the application of
such provisions to include ``any case involving a direct appeal to the
Supreme Court from the decision of a district court or a district court
of three judges which cannot be heard and determined because of the
absence of a quorum of qualified justices.'' It includes direct appeals
in criminal cases under section 3731 of title 18 (H.R. 1600, 80th
Cong.).
Sections 29 and 45 of titles 15 and 49, U.S.C., 1940 ed.,
respectively provided that the Supreme Court certify the case to the
Circuit Court of Appeals and that the Senior Circuit Judge, qualified to
participate should designate himself and two other circuit judges next
in order of seniority. Other provisions were made for designation of
circuit judges from other circuits in case of insufficient circuit
judges being available in the circuit.
The revised section permits the Chief Justice of the United States
to designate the ``court of appeals'' to hear the case in banc or by
means of a specially constituted court of appeals composed of the three
circuit judges senior in commission who are able to sit. In case of
disqualification or disability, the court shall be filled by designation
and assignment as provided in chapter 15 of this title.
The provisions of section 29 of title 15, U.S.C., 1940 ed., and
section 45 of title 49, U.S.C., 1940 ed., relating to time for appeal
are incorporated in section 2101 of this title. The provisions of said
sections for direct appeal to the Supreme Court are retained in said
titles 15 and 49.
The second paragraph of the revised section is new. It recognizes
the necessity of final disposition of litigation in which appellate
review has been had and further review by the Supreme Court is
impossible for lack of a quorum of qualified justices.
