Chief Justice Sharon G. Lee said the Tennessee Supreme Court will continue to serve at the same level of operation while the executive and legislative branches work out the details of appointing and confirming a replacement for retiring Justice Gary R. Wade.
“There have been many occasions with vacancies on this Court before – including in the last decade,” Chief Justice Lee said. “Choosing the next justice is an important decision for the State of Tennessee and there is no need to rush it.”
The Court is slated to hear oral arguments on seven dates in September, October and November, and those sessions will go on as scheduled with four justices.
When Chief Justice Lee learned of the impending retirement earlier this month, she assured Governor Bill Haslam that the Court was prepared to continue its work uninterrupted until a successor was appointed and confirmed – something she knew might not happen until next year.
It’s not unusual for the Court to sit with only four justices. In September 2006, after Justice E. Riley Anderson and Justice Adolpho A. Birch, Jr., retired, the Court convened with four justices until Justice William C. Koch, Jr. was appointed in June of 2007.
More recently, several of the Court’s cases have been heard by only four justices due to conflicts with recently appointed justices Jeffrey Bivins and Holly Kirby, who may have participated in cases when they were members of the intermediate appellate courts. There are other reasons that justices may need to recuse themselves from cases and that happens from time to time.
The Court also has the ability to appoint a special justice if there is a need. While it is unlikely the Court will exercise that option with four justices, it may do so if one of the four has to recuse themself. In the unlikely instance there is a 2-2 split on a decision, the Court can reschedule oral arguments to be held after a new justice has joined the Court.
The Tennessee Supreme Court considers more than 700 cases each year and agrees to hear about 10 percent of those. That work will continue uninterrupted during the time the Court has only four justices, according to Chief Justice Lee.