What happens in a Supreme Court tie?

Answers to your questions about the news.
Nov. 2 2004 4:46 PM

What Happens in a SCOTUS Tie?

How the court operates with a justice out sick.

Despite his plans to the contrary, Chief Justice William Rehnquist has yet to return to the Supreme Court after his tracheotomy last week. Instead, according to an official statement released yesterday, the 80-year-old Rehnquist will be working from home as he recuperates. How will the court function in Rehnquist's absence, especially if another contested election gets thrown its way?

Although he is confined to his house for the time being, Rehnquist can still participate in Supreme Court decisions. Justice John Paul Stevens, who is subbing as chief justice with Rehnquist gone, made this clear yesterday when he commented that his cancer-stricken colleague "reserves the right" to cast his vote in upcoming cases. That includes cases for which the chief justice isn't physically present for oral arguments; he will rely on transcripts and written briefings instead.

Advertisement

That's actually a bit unusual, since Supreme Court justices often abstain from the decision-making process when they've missed oral arguments. In March of 1972, for example, Rehnquist chose not to participate in the decision in Eisenstadt v. Baird, which granted unwed couples the same access to contraceptives as their married counterparts; he held out because he'd been on the court for only two months and had thus not been present for oral arguments the preceding November. Yet there is no written rule barring absentee justices from casting their votes, so Rehnquist's work-from-home plan is perfectly legit.

Since little is known about the severity of Rehnquist's thyroid cancer—the Supreme Court refuses to release any details—it's impossible to know how long the chief justice will be absent from the bench. If his health takes a dramatic turn for the worse and he is unable to participate even from home, it's possible that an eight-person court could hear any election challenge. That means a 4-4 split is likely.

Although rare, 4-4 ties are hardly unheard-of—justices do recuse themselves from time to time. A split decision effectively upholds the ruling of the lower court (presumably a state supreme court). In the event of such a tie, the court typically issues what's known as a per curiam decision. The opinion in such a decision is issued under the court's name, as opposed to consisting of a majority and a minority opinion. Justices, however, may attach dissenting opinions to the per curiam decision if they like—as happened in Bush v. Gore.

When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent. Tradition holds that the court's per curiam opinion in such ties is usually very, very terse, often consisting of no more than a single sentence: "The judgment is affirmed by an equally divided court." But it's a safe bet that the opinion in Kerry v. Bush or Bush v. Kerry would be a lot longer than usual.

TODAY IN SLATE

History

Slate Plus Early Read: The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Transparent Is the Fall’s Only Great New Show

The XX Factor

Rehtaeh Parsons Was the Most Famous Victim in Canada

Now, journalists can't even say her name.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

  News & Politics
History
Sept. 29 2014 11:45 PM The Self-Made Man The story of America’s most pliable, pernicious, irrepressible myth.
  Business
Moneybox
Sept. 29 2014 7:01 PM We May Never Know If Larry Ellison Flew a Fighter Jet Under the Golden Gate Bridge
  Life
Dear Prudence
Sept. 29 2014 3:10 PM The Lonely Teetotaler Prudie counsels a letter writer who doesn’t drink alcohol—and is constantly harassed by others for it.
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Slate Fare
Sept. 29 2014 8:45 AM Slate Isn’t Too Liberal, but … What readers said about the magazine’s bias and balance.
  Arts
Brow Beat
Sept. 29 2014 9:06 PM Paul Thomas Anderson’s Inherent Vice Looks Like a Comic Masterpiece
  Technology
Future Tense
Sept. 29 2014 11:56 PM Innovation Starvation, the Next Generation Humankind has lots of great ideas for the future. We need people to carry them out.
  Health & Science
Medical Examiner
Sept. 29 2014 11:32 PM The Daydream Disorder Is sluggish cognitive tempo a disease or disease mongering?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.