×

With Scalia missing, the Supreme Court still hates ties

Justice never sleeps, even when the Supreme Court is down a member.

After the death of Antonin Scalia in February, commentators predicted that the remaining eight justices would be stymied by deadlock. Yet a review of more than 60 recent decisions shows that only a handful have resulted in ties.

Consider the math: When the Supreme Court has nine members, it hands down close-call votes of 5 to 4 about 20 percent of the time. So if a justice were randomly removed, then a little more than half of those cases would be likely to end in stalemates.

But that's not what is happening now or with previous even-numbered courts. Only about 5 percent of the cases decided by courts with an even number of justices since the 1940s have ended in ties, and today's court is close to that number at about 7 percent, according to CNBC's analysis. That's about half of what would be expected.

The evidence suggests that the remaining justices can adjust to avoid a 4-4 split decision, which can muddy the legal waters and is sometimes considered an embarrassment for the court. Justices can, for example, decide to compromise on narrower decisions that they all agree upon rather than fighting over broader issues.

Today's court is often described as being more ideologically divided than past courts, but in the face of an even number of seats it has still managed to return about the same percentage of tied cases as the earlier Rehnquist court.

Evenly split courts are not nearly as rare as they seem. About 1 in 5 decisions since 1946 have been handed down by an even court, either because a justice is missing or has recused himself or herself from a case.

In 2005, none of the 23 decisions by even courts ended in a tie, and in 2010, only two out of 33 cases were ties. Even when the court has an even number of justices, about 40 percent of cases are decided unanimously. Since Scalia's death, about 47 percent have been unanimous.

Supreme Court justices are aware that a 4-4 decision is a failure to resolve legal quandaries for the country, especially when lower courts have issued conflicting rulings. Scalia himself used that reasoning as a justification for not recusing himself due to his friendship with then-Vice President Dick Cheney:

"That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The court proceeds with eight justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case."

Speaking at NYU Law School after Scalia's death, Justice Elena Kagan said the court was "working really hard" to try to avoid 4-4 affirmations of the lower court's decision.

"I think we always work hard to reach agreement, but I think we're especially concerned about that now," she said.

While a massive uptick in ties hasn't materialized, the missing justice did affect the final decision in a few of the most politically charged cases.

In Friedrichs vs the California Teachers Association, oral arguments seemed to indicate that the court would come down against the union in a case over whether organized labor can force nonunion members to pay dues. But with Scalia gone, the court returned a tie, automatically affirming the lower court's decision in the other direction.

The recent case that blocked President Barack Obama's order to defer the deportation of immigrants, U.S. vs. Texas, was also affirmed by a 4-4 vote.

The justices also tied on the interpretation of a credit transaction statute in Hawkins vs. Community Bank of Raymore and of consent to tribal jurisdiction in Dollar General Stores vs. Mississippi Band of Choctaw Indians.

Other important cases that were thought to be at risk for an evenly split court, like Evenwel vs. Abbott and the recent Women's Whole Health v. Hellerstedt, were instead resolved decisively by the court. In Hellerstedt, the Supreme court threw out a Texas abortion law that advocates said would close most of the abortion clinics in the state.

That 5-3 ruling was delivered by the swing vote from Justice Anthony Kennedy, who prevented a tie (and ambiguity in the lower courts) by siding with the more liberal justices.