Wednesday, August 12, 2020
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What happens if the Supreme Court ties?

Today’s announcement of the death of Justice Antonin Scalia prompted an immediate response from Republican senators and several Republican presidential candidates for President Barack Obama to abdicate his constitutional duties and fail to nominate a justice to take Justice Scalia’s place, the New York Times reports.


Justice Antonin Scalia in 2012 (Alex Wang / Getty Images)

Although some Democrats called for exactly the same kind of obstructionism eight years ago and 24 years ago, the matter was rendered moot, as Presidents George W Bush and George Bush never got the chance to nominate a justice in the election year.

If President Obama fails to nominate a justice to fill the vacancy or the Senate fails to confirm such a nomination, several cases this year could end in a 4-4 tie. But there’s no precedent for President Obama to wait until the next president takes office.

Among the cases that were considered to be almost certain 5-4 decisions was the case of Friedrichs v California Teachers Association, brought by 10 California teachers against the state’s teachers’ union.

The lower court, the US Court of Appeals for the Ninth Circuit, ruled in favor of the union, saying it could continue to force nonunion members to pay agency fees to support the collective bargaining but not the political activity of the union. That ruling, however, was largely considered a solicitation, at the urging of the teachers’ lawyers, to the Supreme Court to take the case, since a precedent would have to be overturned in order for the teachers to win.

Four justices, who are sometimes considered part of the Court’s “liberal wing,” are expected to vote for the union, upholding the decision of the Ninth Circuit and leaving the former precedent, Abood, in place. The other four justices, including Chief Justice John G Roberts Jr, are expected to vote for the nonunion teachers, saying they don’t have to pay the agency or fair share fees, overturning both the Ninth Circuit’s ruling and the Abood decision.

If the seat remains vacant before the Supreme Court issues a decision in this case (and the vote is 4-4, as it is widely expected to be), here’s what would happen:

Any time the Supreme Court is tied, the decision of the lower court, from which the case was appealed, is considered “passively upheld” under US law. That means any ruling issued by the lower court stands but the case can’t be used to establish any legal precedent from the Supreme Court. In fact, the Court hardly ever writes a formal opinion in the case of a tie.

Other options in as-yet undecided cases

The Supreme Court’s vote isn’t counted, so to speak, until it is issued from the bench or, at least, released to the public. Several cases this year have been argued, including an affirmative action case from Texas involving a white college student who was denied admission to the University of Texas in the face of black students, whose scores were lower, who were given offers of admission.

Other things that could happen if oral arguments have already been heard:

  • The Court could re-hear the cases after a ninth judge is appointed, say, next term. The landmark school desegregation case, Brown v Board of Education, was decided after re-argument in 1954. Based on tradition, many legal experts consider this the most likely course of action on important cases that will end in a tie without Justice Scalia’s vote.
  • The Court could declare the cases “improvidently granted,” in effect saying it should not have heard them in the first place.
  • The Court could issue an opinion, assuming the vote of the missing justice would not change the winner, such as in cases where he was in the minority or had recused himself.

Justice Scalia was widely expected to vote in the affirmative action case in a way that would permanently change admissions policies at many colleges and universities, since he is on the record as opposing any role a person’s race may play in deciding college admissions. Since Justice Elena Kagan had already recused herself on this case, though, the vote is largely expected to be 4-3 now, in favor of the white student who was denied admission, Abigail Fisher.

Just as important as Justice Scalia’s vote, though, was his determined and uncanny ability to convince other justices on the Court to change their votes on key constitutional questions. His opinions, especially in dissent, have shaped legal thinking on important questions for many years to come.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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