A Tie Bench at the Supreme Court

Written by: K.O. Myers, J.D.

The death of Supreme Court Justice Antonin Scalia has touched off a fierce political battle, with President Obama and Republican senators (and presidential candidates) taking opposing positions about their Constitutional duty to fill the vacant seat at the Court. But how is the actual work of the Supreme Court affected by the loss of a Justice in the middle of a term?

By long tradition, the Court does not consider a case to be decided until the final opinion has been announced. This gives Justices the opportunity to reconsider their positions while the opinion is being written, as Chief Justice Roberts did when the Court voted 5-4 to uphold the individual health insurance mandate in the Affordable Care Act.

When a Justice dies or steps down mid-term, that Justice’s input on pending cases is essentially withdrawn. The vote no longer counts. Any opinions the Justice was writing (even if they’re essentially complete) will be assigned to another Justice.

In most of its cases, the Supreme Court is reviewing a ruling made by a Circuit Court of Appeals. A 4-4 tie vote means that the Circuit Court ruling is automatically affirmed. The ruling applies only to people living in that Circuit (Iowa is in the Eighth Circuit, along with Minnesota, Missouri, Nebraska and Arkansas). Several divisive issues are on the Court’s docket, including abortion, voting rights and mandatory union dues. Tie rulings could leave different parts of the country with different legal rules governing these issues.

The Court can also hold close cases over, to be reargued once a new Justice has been confirmed. This leaves the parties in limbo, waiting for resolution on cases that have often already lasted years. While this isn’t ideal, it’s usually preferable to tie rulings that could leave the rest of us with a confused legal landscape. However, if this Senate and President can’t agree on a new Justice, the Court could be holding these important cases for more than a year.

As with most details of Supreme Court procedure, there is no rule that governs this choice. The Justices get to decide how they want to proceed. Many Court watchers think the Justices will decide to wait and make their decisions with a full bench, but we won’t know for sure until the Court tells us how they plan to manage the rest of their term.