An eight-justice supreme court happens more often than you’d think due to illnesses and recusals, but 4-4 splits are far less common

It’s as if they never heard the case at all.

The supreme court’s 4-4 split Thursday in United States v Texas leaves in place a lower court’s ruling that blocked Barack Obama’s immigration plan. When the court is equally divided, no precedent is set and the lower court’s opinion stands.

Given the court’s ideological divide, it’s possible that Whole Woman’s Health v Hellerstedt, a case with large implications for Texas abortion clinics, could also end up with a 4-4 split this coming Monday.

When Justice Antonin Scalia died in February, leaving only eight justices on the court, people feared the proliferation of 4-4 splits such as these. But while the Senate’s refusal to hold confirmation hearings for Merrick Garland is unprecedented, an eight-justice supreme court is not.

And when there is an eight-justice court, 4-4 splits are actually far less common than you might imagine, a Guardian analysis has found. In fact, of the 54 eight-justice decisions since Scalia’s death, just four have been 4-4 ties.

An eight-person court isn’t that uncommon

Eight or fewer justices have decided 22% of supreme court cases over the past 70 years.

The Guardian examined data on every supreme court case from 1946 to this session and found that the court has heard 18% (1,601) of cases with an eight-person court, and a further 4% (357 cases) with even fewer justices.

Of the 1,601 cases heard by eight justices, 84% have occurred when a judge recused himself or herself due to a conflict of interest or was sick enough to miss court. While cases heard by eight justices spike in years with a court vacancy, recusal numbers persist yearly, with some years seeing more than 60% recusals.

A recusal means that a justice does not take part in discussions of the case or vote on the decision in cases where there might be reason to question the justice’s impartiality.

A decision to recuse is entirely up to the justice. While Justice Elena Kagan has recused herself from a deluge of cases in which she was previously involved as solicitor general, Scalia famously refused to recuse himself from a 2004 case involving Dick Cheney, whom he’d joined on a duck hunting trip, despite a motion from one of the litigants to recuse.



And sometimes, the court’s numbers are simply a matter of health – over the years, justices have missed many cases due to illness.

The percentage of cases that include recusals has dropped off in the past 30 years. Timothy R Johnson, a law professor at the University of Minnesota, credits the decrease in recusals to a more ideologically divided court: “Justices are finding any reason necessary to decide a case because they don’t like to have cases end up in 4-4 votes.”

‘The justices have practical solutions’

Eight justices may not be uncommon, but it is not the intended state of affairs. “Eight is not a good number,” Justice Ruth Bader Ginsburg declared in May. What’s bad about eight? The court has the potential to split down the middle.

Despite the frequency of cases heard by eight justices, 4-4 splits happen rarely. Of the cases heard by eight justices since 1946, only 7% split evenly. And 95% of the even splits have occurred on cases with recusals rather than vacancies.



In addition to the immigration decision, only three other of the 54 eight-justice decisions since Scalia’s death have split evenly so far. The 4-4 split decision on Friedrichs v California Teachers Association gained attention, because it handed a win to unions that seemed unlikely if Scalia has been alive to vote. But the other cases, including a dispute regarding spousal guarantors of loans, made barely a whimper.



Justice Stephen Breyer doesn’t think eight is as bad as his colleague does. “How many cases are there that [Scalia’s] vote would have made a difference? I think there were four or five,” he said last month.

Rulings that split 5-4 make up 15% of cases over the past 70 years. In the absence of Scalia, one would expect many of those cases to become 4-4 splits. So, why aren’t there more deadlocks?

Justice Elena Kagan said recently that the court is “working really hard” to reach agreement and avoid deadlocks, and she credited Chief Justice John Roberts for building consensus. “I try to achieve as much consensus as I can,” Roberts said.

The justices also have “practical solutions when it looks like there is a 4-4 problem”, explained Stephen Shapiro, co-author of the book Supreme Court Practice. The justices can issue a more narrow ruling that has fewer implications, or punt the case back to lower courts without issuing a decision, as happened this term in another major case over Obama’s contraception mandate.

Not everyone is happy with these accommodations, though. The retired justice John Paul Stevens called a recent narrow 5-3 ruling a “monstrosity” and said it would have been preferable to divide 4-4.

Regardless of the outcome, the court could also vote to rehear cases next year, even if they find a majority. Roe v Wade was initially argued in 1971 and the former justices Hugo Black and John Marshall Harlan had just retired; it was reargued in 1972 to be heard by a full court.

‘It will be the dog that didn’t bark’

While Republican senators continue to stall on Garland’s confirmation hearings, the court has managed to minimize evenly split cases thus far. But supreme court experts think that a prolonged period of only eight justices could affect the types of cases accepted onto next year’s docket, avoiding cases that might end up in a 4-4 split.

Each year, the supreme court receives more than 7,000 petitions for cases to be heard but has recently only granted 70 to 80 writs of certiorari each year. A denied case has the same legal implications as a 4-4 decision: no precedent is set by the supreme court.

To avoid wasting time on something that might end up evenly split, Johnson said that he thinks the court “will avoid really important cases”.

Laurence H Tribe, a professor of constitutional law at Harvard, concurred in a recent public lecture. Tribe said, “Nobody wants to grant [a writ of certiorari] in the case where the court will just waste its precious time, where in the end it will be deadlocked.”

If the court vacancy continues into next year, Tribe cautioned that it may appear that the justices are in agreement, but that may just be a result of accepting less controversial cases, and it will be hard to tell how many could have split 4-4. He said: “No one will be able to count how many there are, because it will be the dog that didn’t bark.”

Sources: The Supreme Court Database and Oyez