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Since February, the high court has been operating with eight justices in most cases. | Getty Six-justice SCOTUS could decide cases on post-9/11 detentions

The Supreme Court limped its way into a dispute over post-9/11 detentions Tuesday, announcing that it will hear a long-running lawsuits on the issue but also indicating that only the bare minimum of six justices may sit on the cases.

The court's orders said Justices Sonia Sotomayor and Elena Kagan took no part in the decision to hear the cases, which usually means that the justices have recused themselves and won't take part in oral arguments or a final decision on the issue.

Since February, the high court has been operating with eight justices in most cases as a result of the vacancy created by Justice Antonin Scalia's unexpected death in February and the Senate's refusal to act on President Barack Obama's nomination of D.C. Circuit Chief Judge Merrick Garland.

With two justices stepping aside in the post-9/11 detainee cases announced Tuesday, the court has only the bare minimum needed to act on a case. A federal law specifies that at least six justices are needed for a quorum.

Of course, it's possible a ninth justice might be added to the court in the coming months, which would allow seven justices to decide the cases. But it's unclear just when a new justice will be confirmed, particularly if Republicans hold onto control of the Senate in next month's election.

The cases granted review Tuesday, known under the lead case Ashcroft v. Turkmen, challenge the strict conditions under which detainees of Muslim and Arab descent were held at New York's federal Metropolitan Detention Center in the years after the September 11 attacks. A federal appeals court ruled, 2-1, last June that the suits could go forward.

The Supreme Court, as is its custom, did not announce why Sotomayor and Kagan stepped aside. Sotomayor was on a 2nd Circuit panel that heard an earlier version of the dispute, but she was confirmed on the Supreme Court before the panel ruled. Kagan was solicitor general while the Obama administration was defending the case.

Dropping down to six justices could make it easier for conservatives to prevail, since four of the justices still on the case are Republican appointees, but it probably doesn't give them more advantage than they would have on a seven-member court. Only four justices are needed to grant review, or certiorari, in a case.

"It may be the conservatives voted for cert because they may actually have a chance to win," said Emory law professor Jonathan Nash.

Nash said that because the Sotomayor and Kagan recusals appear to have to do with their involvement with the case in earlier jobs, they're the kind that are less likely as time goes on, even if Scalia's chair remains vacant.

"It's hard to make the argument that the Supreme Court is barely going to be able to put together a quorum going forward, but it's definitely dwindling," Nash added.

In June, the shorthanded Supreme Court had only seven justices voting for a key case on affirmative action, Fisher v. University of Texas. The justices ruled, 4-3, in favor of the school and against a white applicant who said she'd been discriminated against. Kagan recused herself, apparently due to her work on the case while solicitor general.

The Supreme Court has failed to come up with a quorum in some cases. A National Law Journal article published last year found 11 instances since 2000 where the court couldn't muster six justices. Under those circumstances, unless it looks like holding the case over to another term would produce a quorum, the failure to rule on the case is usually treated as similar to a tie vote. As a result, the appeals court decision below would be upheld.

Cases decided with less than a full complement of justices—set by law at nine since the 1860s— are sometimes seen as carrying less weight than the typical case, although that may not make a lot of sense.

"At six, you are getting to the point where it may not have the same legal legitimacy as a judgement that has the benefit of coming from nine justices on the bench," said Boston College law professor Richard Albert. "Why should a decision from a court split 5-4 be more legitimate than one from a court split 6-0? ... Of course, if it's split 3-3 that may be more of a problem."

While the court's dais may look a bit empty when the 9/11 detention cases are argued next spring, the court does sometimes hold sessions with even fewer than six justices present. In fact, at the Supreme Court's opening session last Monday, only five of the current eight justices were on the bench. Justices Kagan, Stephen Breyer and Ruth Bader Ginsburg were absent. (It was Rosh Hashanah and those happen to be the court's three Jewish justices.)

No cases were argued at that session, but a justice isn't required to actually be present for arguments in a case to hear and decide it.