55 Pages Posted: 14 Feb 2016 Last revised: 12 Sep 2017

Date Written: February 13, 2016

Abstract

What should the Supreme Court do with a tie vote? A long-standing rule provides that when the justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia raises the specter that the Supreme Court October Term 2015 could be replete with such results, and the cases at risk of ending in ties include high-profile and contentious cases about unions, voting rights, immigration policy, and Obamacare.

This Article constitutes the first detailed empirical analysis of whether the Supreme Court’s current approach to tie votes makes sense, presenting an original study of the 164 instances in which a tie vote occurred between 1925 and 2015. Those data reveal two important trends, both of which suggest the current approach is at best unnecessary. First, where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance. Second, only 1 of the 164 cases would today fall within the Supreme Court’s limited mandatory jurisdiction. The remainder would arrive at the Court on a writ of certiorari, a docket that is entirely discretionary.

Instead of affirming by equal division, the Supreme Court should utilize an alternate and equally well-established procedure to dismiss cases as improvidently granted. At a time when Americans disapprove of the Supreme Court at unprecedented levels, dismissing rather than formally announcing a tie to terminate deadlocked cases better protects the public perception of the Court’s legitimacy. Moreover, dismissal would reduce the potential for justices to write opinions that take public positions on issues that have not yet been resolved. Finally, as a matter of cognitive psychology, justices may feel internal pressure to remain consistent with a position once staked out in a vote that resolves a case. Dismissing, rather than affirming by an equally divided court, could alleviate that psychological pressures, allowing the justices to be more fair-minded when approaching cases in the future.