Upon Further Review

Now that former Pennsylvania Supreme Court Justice Joan Orie Melvin’s resignation from that court has become official, Governor Tom Corbett has 90 days in which to nominate a successor. Although the governor’s attention may currently be focused mainly on budgetary and other matters, I remain confident that Corbett will nominate someone to Pennsylvania’s highest court before time runs out.

The opportunity to shape the path of Pennsylvania’s highest court at this time is both so rare and so potentially important that it is inconceivable that the governor would allow it merely to slip away unexercised. Plus, Corbett is on record as a supporter of so-called appellate judicial "merit selection," and this opportunity to name a replacement justice is as close as Pennsylvania law currently offers to that manner of judicial selection.

In addition, any replacement justice will end up serving on the court until the end of 2015, a term of more than two years, assuming that confirmation from the Pennsylvania Senate can be achieved this calendar year, which would appear to be a very reasonable timetable. More than two years is enough time for a new justice to exercise significant influence on the court. Although skeptics familiar with the state Supreme Court’s sometimes glacial pace of judicial decision-making might remark that it often seems to take that court longer than two years from oral argument to decide more complicated cases, there is no reason to doubt that a seventh justice serving a term that would expire at the end of 2015 should be able to cause the court to decide cases more quickly.

One of the first tasks awaiting Pennsylvania’s newest justice when he or she arrives at the court will consist of having the opportunity to cast the deciding vote in cases that have been accepted for review on the merits in which the six current justices now stand evenly divided. Of course, the very first thing that the newest justice must ensure is that he or she is not recused or otherwise disqualified from participating in those cases.

It is of utmost importance that the newest justice recognize that his or her role in cases awaiting a decision on the merits as to which the court is now evenly divided is not merely to play the role of tiebreaker. The newest justice has the obligation and must have the opportunity to consider each case pending on the merits unencumbered by the views and opinions about the case that his or her colleagues on the court have already reached.

A hypothetical can help illustrate the point I am seeking to make. Assume that a particular case can potentially have five different outcomes, which for ease of reference I shall number one through five. Assume further that among the current six justices on Pennsylvania’s highest court, three have voted in favor of outcome two, while the remaining three have voted in favor of outcome five. In that case, when the newest justice arrives at the court, it is conceivable that the original six justices could tell the newest justice that he or she must decide whether outcome two or outcome five should become the law of Pennsylvania. That, in my view, would be an absolutely improper manner in which to proceed.

Rather, the newest justice should and must have the opportunity to examine all five potential outcomes, as though he or she were serving on the court at the time that the case was first under consideration. And then, if the newest justice were to reach the view that outcome four should be the law of Pennsylvania, that justice must have the opportunity to persuade his or her colleagues of the correctness of that view. If successful, then outcome four would eventually become the law of Pennsylvania if at least three other justices could be persuaded to the correctness of that view.

As my hypothetical demonstrates, not only must the new justice have the opportunity at the outset to consider each case pending on the merits in a manner unencumbered by the views of his or her colleagues, but the six other justices should likewise be willing to reconsider their views on the case based on whatever particular input and perspectives that their new colleague happens to offer.

The process that I have described above is more than merely a hypothetical: It actually happened in a case decided at the U.S. Supreme Court less than two months ago. In Kirtsaeng v. John Wiley & Sons, 133 S. Ct. 1351 (2013), the nation’s highest court granted review to decide whether the so-called "first sale" doctrine under the federal Copyright Act applies to copies of a copyrighted work lawfully made abroad. The Kirtsaeng case marked the second time that the U.S. Supreme Court granted review to decide that issue. In the first case, Costco Wholesale v. Omega, 131 S. Ct. 565 (2010), the court divided 4-4 in December 2010 with Justice Elena Kagan not participating.

The same eight justices as in Costco plus Kagan were participating in the decision in Kirtsaeng, and thus a 5-4 outcome was widely expected. To the surprise of many, when the U.S. Supreme Court issued its decision in Kirtsaeng on March 19, the vote was 6-3, with Kagan in the majority. In other words, with Kagan involved, the remainder of the court was no longer evenly divided over the result on the very issue that had caused the identical other eight justices to be evenly divided in 2010.

The next justice serving on Pennsylvania’s highest court should have the very same opportunity to influence the outcome of the cases in which that court is now evenly divided that Kagan had at the U.S. Supreme Court with regard to the question that had originally divided that court in the Costco case. The newest state Supreme Court justice cannot be viewed, and should not be regarded as, merely a tiebreaker. Rather, that new justice will have, and should be understood to possess, the same ability to influence the outcome of all pending cases that all of his or her other colleagues on the court have had and continue to have until a case is finally decided. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.