Remaining open questions of Supreme Court procedure

A recent NY Times article noted, referring to Hamdan v. Rumsfeld,

In what other areas (within the realm of reason) has the Court not yet established a procedural precedent?

IANAL and certainly do not know how this all works but I want to say I am a bit surprised at this. Why is there is question over whther a tie really means one side won or the other? A tie is just that…a tie. Neither side won. It seems to me the whole thing needs to be started again (hopefully with nine justices next time). Until a decision one way or the other has been reached essentially NO decision has been reached.

Either that or send the justices back to chambers and tell them they cannot come out till a decision, one way or the other, is reached.

The rule for a tie is well-established when the point in issue was ruled on by the court below. It takes a majority of the Supreme Court to overturn a decision of the court below. A tie is not a majority, so in the event of a tie, the decision below stands, and the Supreme Court decision affirming the result below is not a precedent, since there was no majority opinion.

However, the point in issue here has two unusual aspects. First, the court below never ruled on the jurisdictional point, since Congress passed the law after the court below ruled. Therefore, this issue comes to the Supreme Court as a question of first instance - it’s the first time the Court has to rule on it, and without the benefit of a lower court decision.

Second, the law in question relates to federal court jurisdiction. Some courts in the state system are courts of general jurisdiction: they have jurisdiction unless a statute takes it away from them. Federal courts, however, are courts of defined jurisdiction. They only have jurisidcition if a statute gives it to them (setting aside the Supreme Court’s original jurisdiction under the Constitution, which is not in issue here). So if a party challenges the Court’s jurisdiction, and there is some doubt about that in the particular case, does the Court need to make an affirmative finding that it has jurisdiction (i.e. - a majority of the judges)? That’s the point in issue here. I imagine that the reason this point is in doubt is because these types of jurisdiction-stripping bills are so rare, particularly ones that come into play in between the decision of the court below and the hearing in the Supreme Court.

There’s a question because the Supreme Court can’t punt. The Court can’t just say “Uh, we’re not sure – come back in two or three years.” A decision must be made.


Since John Roberts did not rule on the jurisdictional issue when a member of the lower court, why can’t he sit as a member of the SC on that issue alone, and recuse himself on substantial issues? That would make the possibility of a tie far more remote.