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Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN.

Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.

There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court.

Pidot begins with a little history. The basic rule that a tie vote leads to an affirmance of the lower court decision—but does not establish any binding precedent—is almost as old as the Republic itself. It dates back to the Court’s 1792 decision in Hayburn’s Case, when a six-justice Court divided equally on whether our nation’s first Attorney General, Edmund Randolph, had the authority to file a petition for mandamus ex officio.

Next, Pidot sets out the results of his empirical analysis of tie votes between 1925 and 2015. (He chose the starting date because the 1925 Judiciary Act made it so the vast majority of the Supreme Court’s docket would be at the Court’s own discretion, via a writ of certiorari.) Pidot limits his study to cases where the Court is equally divided on the judgment, rather than where the Court is equally divided as to the reasons for the judgment. Pidot also excludes from his dataset motions—such as requests for stays or writs of mandamus—that the Court denied because of a tie vote.

Within these parameters, Pidot finds 164 tie votes during the period from 1925 to 2015. He reports that in 149 of these, the Court did not identify how each of the voting Justices voted, and neither the Court as a whole nor any individual justices provided any reasoning or explanation in support. This is consistent with the one-sentence rulings we have seen from the Court so far this Term: “The judgment is affirmed by an equally divided Court.”

Pidot then turns to the fifteen cases that do not fit this description. In some, the Court noted its equally divided vote on a particular issue as part of a larger opinion resolving the case on other grounds. (This happened again just recently in Franchise Tax Board v. Hyatt, where the post-Scalia Court split 4-4 on whether to overrule Nevada v. Hall, but a 6-2 majority reversed the lower court’s judgment on other grounds.) In others, the Court divided equally as to one party but made some other disposition as to other parties—such as dismissing cert as improvidently granted (a “DIG”), or granting cert but vacating and remanding for reconsideration in light of some other decision (a “GVR”). Pidot also found one fascinatingly odd case where the Court granted certiorari and—in the same order and without merits briefing or oral argument—affirmed by an equally divided court. There were only three cases in the dataset where any justices authored an opinion that explicitly revealed their views about the particular issue on which the Court divided equally.

Pidot’s article also explores the normative implications of 4-4 ties. The major practical downside of such decisions is that they can compound a lack of uniformity in the federal judiciary, because they fail to generate binding precedent that otherwise could have resolved disagreements among lower courts. These concerns have prompted some to call for institutional changes—such as the appointment of substitute justices—to avoid tie votes.

To assess the extent to which this has been a problem, Pidot looks at the 21 tie votes that occurred between 1986 and 2010. He argues that the lack of precedential decisions in those cases did not significantly undermine uniformity. It remains to be seen whether this will still be the case if we find ourselves in a sustained period of only eight justices—rather than the more typical situation where eight-justice decisions result from occasional recusals in particular cases. But Pidot’s findings from these 21 cases are very interesting. He identifies six cases where there had not been a split of lower court authority before the Court granted cert; thus the lack of a binding Supreme Court decision did not allow a lack of uniformity to persist. In nine cases where a circuit split did exist, the Supreme Court granted cert in a later case and resolved the disagreement. For cases in this category, the two longest delays between the 4-4 affirmance and the later cert grant were nine and ten years; all of the others were four years or less (in one instance, the Supreme Court decided a follow-up case within five months). Pidot also finds two examples where a split was resolved notwithstanding the 4-4 Supreme Court affirmance, either because some lower courts changed their position or because the Executive Branch promulgated clarifying regulations. He concludes that there were only three examples during this period where an important circuit split remained unresolved following a tie vote at the Supreme Court.

Pidot proposes one change to the way 4-4 votes are currently handled. He argues that the ultimate result of a tie vote should not be an affirmance of the lower court. Rather, the Court should DIG such cases. This would have the same practical consequence of leaving the lower court decision intact. But Pidot finds a DIG preferable to affirmance for several reasons. Among other things, having justices cast affirmative votes on the merits risks biasing those justices in future cases, due to psychological dynamics such as confirmation bias, cognitive dissonance, and the “lock-in effect.” He also contends that an affirmance based on a tie vote can undermine the legitimacy of the Court—furthering the perception that the Court is political rather than impartial, raising ethical questions in future cases by indicating that justices have prejudged a particular issue, and encouraging gamesmanship by highlighting who the tie-breaking justice will be (the one who did not vote in the case that generated the 4-4 tie).

Pidot recognizes, however, that many of these concerns are not absolute. For example, judges do change their minds on certain issues. My favorite “exception that proves the rule” is Free v. Abbott Laboratories—a case that Pidot identifies as a tie vote where the issue left unresolved was addressed on the merits in a later Supreme Court decision. The Court had granted cert in Free to resolve whether supplemental jurisdiction is available for certain kinds of claims, but Justice O’Connor recused herself and a 4-4 tie ensued. When the Court revisited that issue in Exxon Mobil v. Allapattah, O’Connor was in the minority—even though the membership on the Court had not changed. So one of the justices in the Allapattah majority (Rehnquist, Scalia, Kennedy, Souter, or Thomas) must have changed his view after the vote in Free.

The current stand-off over filling Scalia’s seat on the Supreme Court means that tie votes at the Supreme Court present a more crucial challenge than ever. Pidot’s article is a must read for anyone who wishes to wade into this important topic.

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Cite as: Adam N. Steinman, Fit to Be Tied, JOTWELL (May 18, 2016) (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN),