In an unusual order, with seven of the nine Justices not taking part, the Court summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute. In Monday’s order, no Justice made any comment on the Circuit Court ruling being affirmed.
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So if the lower court had said they were liable, would they automatically have to pay?
Does that make it a tactical mistake to have sued more than 3 justices?
Historically, the same situation arose in the Alcoa antitrust case, where something like six of the Justices recused themselves because they all owned Alcoa stock. Instead of deeming the lower court to be upheld, the Second Circuit was designated as stand-in Supreme Court Justices for that one case. It was a sui generis situation, and it may be that the federal law referenced above was passed in response to that case.