Betsy Newmark asks, on behalf of one of her high school students — what happens when (1) the Supreme Court hears a case within its original, rather than appellate, jurisdiction, (2) one of the Justices is recused (yes, unlikely in an original jurisdiction case, but possible), and (3) the Justices split 4-4? In an appellate jurisdiction case where the Court is equally divided, the result is an affirmance of the decision below; but in original jurisdiction cases, there is no decision below.
I am rationally ignorant of the answer to that question — but if one of our readers saves me the work of having to research it, then I will become rationally knowledgeable (and so will Betsy and her student, and the rest of you).
UPDATE: The only accurate answer seems to be “What would happen in the event of an evenly divided court in a case within the Supreme Court’s original jurisdiction is unknown,” quoted from John V. Orth, How Many Judges Does it Take to Make a Supreme Court, 19 CONST. COMMENT. 681, 686 n.27 (2002). Thanks to Shawn Chapman and Robert MacNamara for the pointers.
This means that all that’s left is sheer speculation, and here’s mine: First, the Justices will think again about the matter, and see if some compromise can attract a majority, or if some Justice is willing to change his vote (for instance, if he was on the fence already); that occasionally happens when the Justices feel a square majority is necessary. Second, if it’s still 4-4, the case will be dismissed with no relief granted to the person seeking it. Ties, the theory would go, are resolved against the person asking for legal relief; that’s reflected in the burden of proof rules at trial, when the standard is preponderance of the evidence, and one might adapt this here.
On this second point, I’m pleased to say that readers Richard Guilford, Robert MacNamara, and Colin Rushing join in this opinion, as do Unnamed High-Placed Parties That Ought To Know (no, not that high-placed), though the always knowledgeable Marty Lederman appears to be dubitante. (Mark Eckenwiler concurs in the first part of my analysis, suggesting that rehearing might be held.)
Possible but unlikely: Rock, paper, scissors. See also here.
Comments are closed.