Stephen L. Carter, Columnist

An Easy Fix for the Justices' 4-4 Votes

The newest member of the Supreme Court would decline to vote, and voila: 4-3.

June 27, 2016 at 3:04 PM UTC

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

Kagan could just sit a few out.
Photographer: YURI GRIPAS/AFP/Getty Images

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The Supreme Court has lurched to the end of its term, trailing a series of 4-4 non-decisions in its wake. Editorialists have bemoaned the Republican-controlled Senate’s refusal to act on President Barack Obama’s nomination of Merrick Garland. But the justices themselves could have solved this problem long ago by adopting a clever and simple device once common among the British courts: in the case of a tie, the junior justice declines to vote.

The rule was never mandatory; it was exercised, rather, as a matter of courtesy. If the U.S. followed the same tradition, no judgment would ever be affirmed by an equally divided court. All four (as of Monday morning) of the frustrating 4-4 deadlocks since the death of Justice Antonin Scalia would instead have been 4-3 majority rulings.