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Supreme Court Affirms BMG v. Vetter for Lack of a Quorum

On October 19 the Supreme Court said it lacks a quorum in BMG v. Vetter. Justices Sotomayor, Gorsuch, Barrett, and Jackson took no part, and the Fifth Circuit judgment is affirmed.

The Publishing Times Staff · October 20, 2026 · 6 min read

Supreme Court Affirms BMG v. Vetter for Lack of a Quorum

What did the Court do on Monday? It said it could not hear the case. On October 19, 2026, the Supreme Court entered an order in BMG Rights Management (US) LLC v. Cyril E. Vetter, No. 25-1391. The docket text says the Court lacks a quorum. It does not say why four justices took no part.

The order says that because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified justices are of the opinion that the case cannot be heard and determined at the next Term, the judgment is affirmed under 28 U.S.C. §2109. The statute, as the order quotes it, provides that in these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of the petition.

The lower court is the Fifth Circuit, No. 25-30108, with a decision date of January 12, 2026. The case was distributed for the conference of October 16. The order is dated October 19.

What Fix the Court says about the four justices

The order is silent on motive. The account of why those four took no part comes from elsewhere. Watchdog group Fix the Court says the recusals follow from their book deals, because BMG and Penguin Random House share a parent. In an on-record statement the same day, Gabe Roth, the group's executive director, said: "Today's recusals make clear that the Supreme Court's current disqualification standards need review. Am I happy the justices are recusing in cases involving their book publisher and its parent company? Yes. As Penguin Random House authors, they have financial ties to PRH's parent company Bertelsmann, which owns BMG. But is this practice sustainable? No, for multiple reasons."

Roth then described the bind as he sees it. "This result either means that Bertelsmann and PRH cases are immune from SCOTUS review, or the justices will try to carve out some 'duty to sit' exception in a future case of theirs that will more likely than not look ridiculous." He said the justices should not wait for the next petition that involves their book publishers. For what it is worth, he added, Hachette, which just published Justice Alito's book and will publish Justice Kavanaugh's, and HarperCollins, which published Justice Thomas's, are also part of large conglomerates. He did not say either house produced a recusal in this case.

His proposal is that justice-authors place book earnings in accounts they cannot access until they retire. A second job, "whether as authors or public affairs firm managers," must not interfere with the Court's work. "While not a perfect solution, I believe this is better than the status quo, where the lack of a quorum means a lower court's judgment is affirmed, and the Supreme Court is no longer supreme."

Bertelsmann's divisions page lists Penguin Random House, the trade book publisher, and BMG, the music company, in the same group. Bertelsmann describes itself as a media, services, and education company with more than 75,000 employees, operating in some 50 countries. The page also names RTL Group, Arvato Group, Bertelsmann Marketing Services, the Bertelsmann Education Group, and Bertelsmann Investments. Further reporting is on our Penguin Random House, Hachette, and HarperCollins pages.

The song, as Courthouse News tells it

Courthouse News reporter Kelsey Reichmann wrote that four of the nine justices sat out an appeal from BMG, and that the label is owned by the same German media company as Penguin Random House, which published books by Justices Sotomayor, Gorsuch, Barrett, and Jackson. Citing Fix the Court, the article says the justices have collectively netted over $13 million from book deals. That sum is in Courthouse News's account, not in the statement quoted above and not in the order. Reichmann also writes that these publishing ties have so far sat outside the ethics scrutiny applied to unreported gifts.

On the dispute itself, Courthouse News reports that the order affirms a lower-court ruling giving Cyril Vetter sole ownership of the 1962 song "Double Shot (Of My Baby's Love)," which he wrote with Donald Smith. In 2022, the article says, ABC sought a license to use the song on international broadcasts and streaming services, and that request opened an ownership fight between Vetter and his record label. Two lower courts ruled for Vetter, allowing him to reclaim copyright in the song in the United States and internationally. BMG, Courthouse News reports, claimed the ruling upended bedrock industry practice on publishing rights and threatened to sow chaos and confusion.

Reichmann writes that the recusals left the Court without the six justices needed for a quorum, and that a majority of the remaining five determined the Court would not be able to hear the appeal. The order itself says only that the qualified justices are of the opinion the case cannot be heard next Term, so the judgment is affirmed with the effect of an affirmance by an equally divided court. Counsel of record for the petitioners is Paul D. Clement of Clement & Murphy. A different Penguin Random House case, in Mexico, is our report on the International Publishers Association backing the publisher's appeal.

Why it matters for authors and publishers

The order does not explain the recusals. What it does is give the Fifth Circuit judgment the effect of an affirmance by an equally divided Court. For authors watching a fight over reclaiming rights, the result Courthouse News describes is the one that stands: Vetter keeps the copyright in "Double Shot (Of My Baby's Love)" in the United States and internationally. BMG does not get a Supreme Court decision on whether that outcome unsettles publishing practice.

Roth's point, which the order does not adopt, is that a case touching Penguin Random House or Bertelsmann can miss a quorum when those four authors step aside. His fix is to hold book earnings out of reach until retirement. His aside on Hachette and HarperCollins is as far as the statement goes about other houses, and it is not a reason in the order.

Sources