The death of U.S. Supreme Court justice Antonin
Scalia in early February 2016 has left just eight justices, instead of the usual nine.
As long as Scalia’s seat is vacant, there is room for a draw. So, what happens if the
Supreme Court ties? Well, in 2015, out of fifteen major Supreme
Court cases, more than half came down to five against four. Even the recent same-sex marriage
decision was five-to-four, showing just how evenly the courts are split. During the tenure
of the current crop of justices, E-lay-na Kay-gan, Sonia Sotomayor, Ruth Bader Ginsburg,
and Steven Breyer have generally voted along liberal lines, while John Roberts, Clarence
Thomas, Samuel Alito, and Antonin Scalia have voted more conservatively. The 9th Justice,
Anthony Kennedy, has consistently voted moderately, with about half and half liberal and conservatives
votes. Without Scalia, Kennedy has considerably more power in partisan, polarizing cases. However, having only eight justices rule on
a case does have precedent. In 2004, one former justice was absent from court due to thyroid
cancer, but he was still able to keep up with court proceedings, despite missing oral arguments.
Justices are also allowed to recuse themselves from a case, leaving only eight to vote on
it. This occurred in 2010, when Justice Kay-gan
recused herself from the case Omega S.A. v. Costco Wholesale Corp. She had been the solicitor
general for the Department of Justice when the case was originally filed, before it made
it to the Supreme Court. The eight member court ended up ruling 4 to 4. So what happened? Well, to understand, we
need to know how the Supreme Court works. The court is established to determine whether
or not laws and other legal matters are in line with the Constitution. Now, in practice,
the Supreme court is an appellate court, although it does have original jurisdiction in some
cases. What this means is that nearly all of the cases that come to the Supreme Court
have already been ruled on by lower courts. A lower court is simply a court whose decision
is appealable to a higher court, with greater jurisdiction. The Supreme Court, also known
around the world as a “High Court” cannot have their ruling appealed. Their word is
law, and sets a legal precedent on future cases, for all US courts. So when the eight member court tied in 2010,
what happened? Well, technically, nothing. A tie in the Supreme Court simply reaffirms
the decision of the most recent lower court. It effectively cancels the appeal. Additionally,
a tie means that there is no legal precedent set on the issue. In such cases, instead of
releasing a majority and minority opinion, the court releases what is called a per curiam
decision. This is usually a collectively authored simple rundown of the tied decision. In the
2010 Costco case, the per curiam stated “The judgment is affirmed by an equally divided
Court. Justice Kay-gan took no part in the consideration or decision of this case.”. In the end, a tied Supreme Court makes the
court ineffective, and with such a split opinion among justices, that may be a big problem. This episode is brought to you by Squarespace.
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at checkout, you’ll get an extra 10% off. Squarespace… you should. Capitol Hill is in a heated debate over who
will nominate justice Scalia’s successor. If you want to learn more about the process
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