us-supreme-court
What happens if the US Supreme Court ties 4-4?
<p>What is the result of a 4-4 split in a US Supreme Court case?</p>

<h1>Ties</h1>

<p>In the case of a 4-4 tie, the decision from the lower court is left as-is, and the opinion sets no precedent that would bind other circuits.</p>

<p>The opinions in tied cases are generally very short, simply stating that the court was equally divided. For example, in <em><a href="http://www.supremecourt.gov/opinions/10pdf/08-1423.pdf" rel="noreferrer">Costco Wholesale Corp. v. Omega, S. A. 
562 U.S. ___ (2010)</a></em>, Justice Kagan recused herself due to prior involvement with the case when she was with the Justice Department. The court split 4-4. This was the entirety of the <em><a href="https://en.wikipedia.org/wiki/Per_curiam_decision" rel="noreferrer">per curiam</a></em> opinion:</p>

<blockquote>
  <p>Per Curiam.</p>
  
  <p>The judgment is affirmed by an equally divided Court.</p>
  
  <p>Justice Kagan took no part in the consideration or decision of this case.</p>
</blockquote>

<p>In another example, <em><a href="https://supreme.justia.com/cases/federal/us/484/1/case.html" rel="noreferrer">Reagan v. Abourezk, 484 U.S. 1 (1987)</a></em>, the court  tied 3-3 (<a href="https://www.law.cornell.edu/uscode/text/28/1" rel="noreferrer">quorum is six</a>). There was a vacancy due to the retirement of Justice Powell; Justices Blackmun and Scalia recused themselves.</p>

<h1>History and congressional support</h1>

<p>Edward A. Hartnett, in <em><a href="http://scholarship.law.wm.edu/wmlr/vol44/iss2/4/" rel="noreferrer">Ties in the Supreme Court of the United States</a></em>, gives a historical account of this practice. This is a practice established by the court itself, not by direction of Congress, but Congress has "presupposed the existence of the rule of affirmance by an equally divided court". Hartnett points to <a href="https://www.law.cornell.edu/uscode/text/28/2109" rel="noreferrer">28 U.S. Code § 2109</a>. That section relates to quorum, but notes that if the court fails to achieve quorum:</p>

<blockquote>
  <p>[...] the court shall enter its order affirming the judgment of the court from which the case was brought for review <em>with the same effect as upon affirmance by an equally divided court</em>.</p>
</blockquote>

<h1>In cases of original jurisdication</h1>

<p>The situation is not so clear for <em><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1135407" rel="noreferrer">Original Jurisdiction Deadlocks</a></em>. In these cases, there is no lower court ruling to affirm. There have been only two original jurisdiction deadlocks. Michael Coenen summarizes:</p>

<blockquote>
  <p>First, in the nineteenth century case of <em>Virginia v. West Virginia</em>,
   Chief Justice Chase announced that the Justices were “equally divided on the demurrer, and equally divided also upon the order which should be made in consequence of that division.” As a result, the matter stood unresolved for nearly three years.</p>
  
  <p>Second, in the twentieth-century disbarment action of <em>In re Isserman</em>, the Court split evenly on the question of disbarment but ordered disbarment anyway. One year later, the Court changed its mind and overruled its prior decision.</p>
</blockquote>

<h1>Avoiding ties</h1>

<p>The court has a few internal things they can do to avoid ties. They could delay issuing an opinion on a case and ask for re-argument by the parties in front of the eventual nine-justice court. They could revisit the case in conference and get votes to shift around based on a more narrow or procedural ruling. In both of these situations, we wouldn't necessarily know that there was an internal deadlock.</p>
