What happens when the Supreme Court has eight justices – and it deadlocks?
In the political battle over confirming a replacement for supreme court justice Antonin Scalia , the lines were immediately drawn.
President Obama said on Saturday that he would nominate a successor to Scalia. But the Senate majority leader and other Republicans said they believed the next president, not Obama, should choose the justice who will determine the political balance of the court.
“The Republicans have made clear that they do not want to confirm anyone and they have the votes to prevent the confirmation,” said Jeffrey Rosen, president of the National Constitution Center and the author of a prescient 2014 article on what might happen if a supreme court justice died during the partisan battle between Obama and a Republican-controlled Senate.
“There’s almost no chance [Obama] will be able to replace Scalia with a liberal,” said Adam Winkler, a constitutional law expert at the University of California Los Angeles law school. Instead, Winkler said: “I think we’re going to see the next year with the supreme court only having eight justices.”
An eight-justice court is “not that rare”, Winkler said, particularly because there are cases every year where a justice has to recuse him or herself, leaving eight justices to decide.
“Over American history the size of the court has varied,” Winkler said, “from six members to 10 members to seven members to nine members. There’s nothing magic about nine.”
With an eight-justice court, a majority decision requires a 5-3 vote. If the supreme court is deadlocked 4-4, the lower court’s decision in the case is upheld but it does not create a legal precedent.
“The best way to say it, if it’s 4-4, it’s as if the court had never even heard the case,” said Russell Wheeler, a federal courts expert at the Brookings Institution. “The decision below stands, but it has no precedential value.
“Of course the court tries to avoid that. A lot of people go to a lot of work for no good reason.”
The potential for a split supreme court has consequences for the whole judicial system. “A divided court makes it hard for lower courts to know what the law is,” Rosen said.
The way the supreme court handles deadlock can cut both ways in politically charged current cases.
In a prominent abortion rights case scheduled for oral arguments in March, a 4-4 split would mean that a lower-court decision upholding one of the strictest abortion laws in the nation would be upheld. But the decision would not set the same precedent for other courts as a supreme court ruling upholding the law.
Moreover, while Republicans may succeed in depriving Obama of a supreme court nomination, a year with an eight-member supreme court might benefit liberals in some high-profile decisions.
“From a partisan standpoint, those who are sympathetic to abortion rights and union rights may look at this and say, at least the battle’s been postponed for a year,” Wheeler said.
Rather than produce deadlocked 4-4 decisions, the court may simply choose to rehear some key cases once a new justice is finally confirmed, Rosen said.
“History suggests that there is a precedent for holding some cases over rather than having a 4-4 split.”
In one of the most high-profile cases before the court, an affirmative action case from Texas, only seven justices may end up making the final call.
In Fisher v Texas, a case challenging a race-based affirmative action policy at the University of Texas, “it’s been widely believed that the supreme court would strike the policy down”, Winkler said.
Advocates for affirmative action said that decision could have a “devastating” effect on university campuses. Elena Kagan, one of the court’s liberal justices, already recused herself from the case, leaving eight justices. Without Scalia, that is now seven. Wheeler said he thought it was still a “safe bet” that the court would strike down the university’s affirmative action policy, 4-3.
Rosen and Wheeler both said they thought an eight-member supreme court was unlikely to persist for much longer than a year, even if a Democrat was elected to the White House while the Senate stayed in Republican hands.
But, Rosen said: “Anything is possible. All you could say is that would be historically unprecedented to have that long a gap between nomination and confirmation, but we may be living in uncharted times.”
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