By Tod Goldstein
Tie votes will lead to reargument, not affirmance
I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be “affirmed by an equally divided Court.” I now believe that is wrong. There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.
Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia. It could be as long as a year from now – well into the Court’s next Term. But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess. Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.
The practice of holding reargument is important for three kinds of cases that are now pending. First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court. It could well lose if Justice Scalia is succeeded by another conservative. Second, in cases in which the liberal side lost below and would have lost through an affirmance by an equally divided Court (perhaps the government in the immigration case), it will have the opportunity to proceed before a full Court when a new appointment is made. Third, in the contraception mandate case, in which an affirmance by an equally divided Court could have led to confusion because the lower court opinions were divided, there is a greater prospect that the Supreme Court will produce a single, clear decision.