WASHINGTON – A justice was missing, again, when the Supreme Court heard its final argument of the term Wednesday, raising the prospect that the remaining eight justices could split and leave unresolved the very issue they had agreed to settle.
The court already has divided 4-4 two times this term, in cases involving special education and lawsuits against pharmaceutical companies.
When that happens, the ruling of the lower court is affirmed but has no value in guiding judges in other cases. Settling sticky legal issues that divide lower courts is the bread and butter of the Supreme Court's work.
The court appeared divided in Wednesday's case involving a lawsuit alleging age discrimination by the Knolls Atomic Power Laboratory in upstate New York. The dispute centers on who bears the burden of proof — the workers over 40 who are challenging their dismissals or the company — in answering whether there was a reasonable explanation other than age for the company's action.
Justice Stephen Breyer did not take part in the case. Justices seldom say why they are stepping aside, but a likely explanation can be found in Breyer's financial holdings.
He owns between $15,000 and $50,000 in State Street Corp. common stock, according to his 2007 financial disclosure report. State Street in turns owns more than 18 percent of Lockheed Martin Corp. Lockheed Martin owns the lab.
The justices could face an even dicier problem when they meet Friday to consider accepting new cases.
Thirty-four American, Canadian and European companies are asking the court to block the class-action claims of millions of people who say they suffered under apartheid while living in South Africa because of the actions of the companies.
Breyer, Chief Justice John Roberts, Justice Samuel Alito and Justice Anthony Kennedy already have stepped aside from cases in the past two years involving companies who are asking the court to intervene.
Lacking four justices, the court would be unable to hear the case even if the remaining five justices wanted to because federal law says there must be at least six justices participating to hear a case.
Justice John Paul Stevens is just the second of the Supreme Court's 110 justices to remain on the bench past his 88th birthday, which he celebrated Sunday.
Oliver Wendell Holmes was 56 days shy of his 91st birthday when he retired from the court. Stevens would have to keep his black robe until Feb. 24, 2011, to tie Holmes, a Civil War veteran who lived until 1935.
Stevens, a World War II veteran, could become both the oldest and longest serving justice during the next president's term. William Douglas, appointed by Franklin Delano Roosevelt, served 36 1/2 years. Gerald Ford appointed Douglas's successor, a Chicago appeals court judge named John Paul Stevens.
To overtake Douglas, Stevens would have to remain on the bench until mid-July 2012.
Is there a likely candidate on the current court who could one day challenge the longevity record? Clarence Thomas was just 43 when he became a justice. He could serve 40 years and still be five years younger than Stevens is today.
Nicole Saharsky, a lawyer in the Justice Department's Solicitor General's office, surprised most people in the courtroom in late March when she used just seven of her allotted 30 minutes. It was her first Supreme Court argument and she was pushing for a longer prison sentence for a drug dealer.
Most often, lawyers speak until the red light goes on signaling they have run out of time. Some attorneys seek permission to go on a bit longer.
Not Saharsky. And it turns out she knew what she was doing. Not only did the court rule unanimously for Saharsky and the government last week, but Justice Ruth Bader Ginsburg produced her opinion in the case in a very fast three weeks.