Kagan could just sit a few out.

Photographer: YURI GRIPAS/AFP/Getty Images

An Easy Fix for the Justices' 4-4 Votes

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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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.

This device, now largely fallen into disuse, was not at all unusual in 19th century Great Britain. In minor cases on burial rights or professional licensing and major cases on land use or criminal law, when the common law judges were “equally divided,” the junior justice would abstain, thereby turning his own side into the minority. The practice was not universally followed, but the tradition was strong enough that, when it happened, everyone understood. As counsel argued in Ex Parte Evans, an 1892 case before the High Court of Justice, recusal by the junior justice was “an easy way of finding a majority.”

But in the U.S. it was almost unheard of. A 1921 article in Law Notes, a magazine for the bar published in New York, insisted that such an idea “finds no place in American jurisprudence.”  A number of U.S. court decisions explicitly rejected it.  The anonymous author of the Law Notes article condemned the tradition for its presumption that the senior justice was wiser than the junior justice, and added that “the rights of the public as well as those of the litigants” should not “depend upon an arbitrary rule, confessedly adopted for expediency.”

And yet even if we agree that there is no reason to value the wisdom of the most senior justice over the wisdom of the most junior, there may be something to be said for expediency.  The practice would have the advantage of avoiding 4-4 splits.  The justices would demonstrate for the rest of us a delicate courtesy uncommon in these raucous days. Senate inaction on the nominee would be irrelevant. Moreover, the method could be adopted without the need for a change in the law; a justice need give no reason for recusal.

Of course, in the current divided era, liberals will worry that such an approach would mean a conservative advantage. The junior justice is the formidable Elena Kagan. The left needs her vote.

But this is short-term thinking. The great appeal of adopting the old British common-law practice is that it would apply in every era. It would simply become a part of the background, as familiar as the requirement that the Supreme Court will hear a case only if four justices first agree. The rule, once settled, would end a great deal of uncertainty.

The U.S. tradition of considering a case affirmed when the court is equally divided goes back to the Founding Generation.  And it carries lessons for ours. In Hayburn’s Case (1792), the justices considered a challenge to a statute requiring Revolutionary War veterans to apply to the federal circuit courts for their pensions. The lower court had held the statute unconstitutional. The Supreme Court delayed its decision by various means until Congress had time to make adjustments.

Legal historians believe that one reason for the foot-dragging was a fear that the court, if forced to act, would be equally divided, thereby affirming the lower court's ruling that the law was unconstitutional. The justices considered a tie vote a weak ground for striking down a congressional enactment.

This is approximately what happened last week in United States v. Texas, the lawsuit challenging President Barack Obama’s executive orders on immigration. The lower court’s ruling of unconstitutionality was affirmed by an equally divided court. If they’re not going to follow the courteous British tradition in which the junior justice abstains, perhaps the justices should at least follow the old American tradition in which a tie vote that would have the effect of striking down an act of Congress is a reason for waiting rather than acting. I like my proposal better, but the important thing is to put the 4-4 non-decisions to an end.

 

  1. The article also noted that some jurisdictions allow, in the case of a tie, “for the presiding judge to have a casting vote.”  The unnamed author pointed out, correctly, that this practice “amounts to the same thing.”

  2. A scattering of early U.S. cases seem to adhere to something like the former British rule, but they have found no followers.

  3. See, for example, the introduction to the case in this volume.

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Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net