Here’s how the Supreme Court will break 4-4 ties

In this June 30, 2014 file photo, the Supreme Court building in Washington. (AP Photo/Pablo Martinez Monsivais, File)

WASHINGTON (MEDIA GENERAL) – Following Justice Antonin Scalia’s sudden death, the United States Supreme Court will continue hearing and deciding cases. But many of the most controversial lawsuits could end in a 4-4 tie.

The U.S. Senate is grappling with the possibility of delaying a Scalia replacement for several months, possibly even into 2017.

That leaves eight justices with no clear majority – in an institution that relies on prevailing opinions.

In the event of a stalemate, justices have two primary options.

Even split

The hottest topics decided by today’s high court come down to a 5-4 split, usually with conservatives in the majority thanks to the swing vote of Reagan appointee Justice Anthony Kennedy.

Kennedy tends to side with right-leaning colleagues on cases involving issues like corporations and environmentalism.

If SCOTUS justices can’t find a majority on contentious topics, they can issue a 4-4 ruling. At that point, the case is knocked back down to the lower circuit courts which have previously ruled on the cases, and those prior rulings will stand.

Here’s the catch: SCOTUS traditionally accepts cases after several circuit courts have issued opposing rulings. For instance, when one circuit approves same-sex marriage and another rules it unconstitutional.

So a 4-4 scenario could indirectly institute conflicting precedents in different regions.

Postpone decisions

Justices may also choose to postpone hearings or ask lawyers to reargue the case once the court is back at full capacity.

The controversial Citizens United case was handled in this manner when conservative justices chose to rule broadly on corporate free speech despite a narrower case initially presented to the court.

This option to delay a judgment avoids an even split on consequential issues that are likely to be heard by the court again in the near future.


The situation of 4-4 SCOTUS ties is not without precedent.

When a justice has previously worked on a case at the circuit level or as part of the administration, they recuse themselves from proceedings.

In this situation, Chief Justice John Roberts will assign himself or a colleague to write his side’s opinion. The most senior justice of the opposing side designates the author for their camp’s opinion.

Given the bright spotlight currently shining on the court, justices are highly aware of the optics of split decisions and will likely avoid unnecessary squabbles.

Senate Majority Leader Mitch McConnell (R-Ky.) maintains that his party, which controls the upper chamber, will not confirm a third appointee by President Barack Obama.

The White House is signaling that an official nominee will be announced in the coming weeks.

Follow Chance Seales on Twitter: @ChanceSeales

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