A reader writes, apropos the equally divided court issue:
1. All laws passed by Congress are presumed to be constitutional. 2. The burden is on the party making the challenge to a law. 3. A tie court vote implies that the challenge has not been met. QED The law is constitutional.
Well, it turns out that this is not the rule in the closest analogous situation — if a lower court strikes down a federal statute, a 4-4 vote on the Supreme Court will affirm the lower court decision, not reverse it. But in any event, I think the message shows a broader misunderstanding about the Court: the assumption that most of the Court’s cases involve determining the constitutionality of Congressional acts.
Actually, only a tiny fraction of Supreme Court cases require the Court to decide whether a Congressional act is unconstitutional. Even if you broaden this to deciding whether any federal or state statute is unconstitutional, that still describes only a minority of the Court’s cases, and I believe the same is true even if you include decisions about whether federal or state executive officials’ conduct was unconstitutional. These cases get a disproportionate share of media and public attention, but they aren’t the majority of the Court’s cases.
Most of the Court’s cases involve statutory interpretation, or application of federal judge-made law. This is especially true, I believe, of the Court’s original jurisdiction cases, which are mostly disputes between states that turn on federal judge-made law, not on federal statutes that are challenged as unconstitutional. Just because you hear a lot whenever the Court strikes down a federal statute doesn’t mean that this is the Court’s daily business.
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