# SCOTUS 8 justice question **URL:** \ **Category:** Factual Questions\ **Created:** [February 23, 2016, 5:30pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892 "2016-02-23T17:30:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 23, 2016, 5:30pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/1 "2016-02-23T17:30:48Z")
Since Scalia died, I’ve read in many places that if the court deadlocks 4-4, it leaves the lower court decision in place but does not set a precedent. The case may eventually be brought again to a full court for a ruling What happens if a court decides 5-3? Does it set the precedent or simply leave the lower court ruling in place? ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [February 23, 2016, 5:51pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/2 "2016-02-23T17:51:41Z")
> [@YogSothoth](#): > > Since Scalia died, I’ve read in many places that if the court deadlocks 4-4, it leaves the lower court decision in place but does not set a precedent. The case may eventually be brought again to a full court for a ruling > > What happens if a court decides 5-3? Does it set the precedent or simply leave the lower court ruling in place? A 5-3 ruling is precedential, and happens from time to time when a Justice needs to recuse themselves for whatever reason (as well as when the seat is empty, like now.) ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [February 23, 2016, 6:05pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/3 "2016-02-23T18:05:21Z")
> [@YogSothoth](#): > > What happens if a court decides 5-3? Does it set the precedent or simply leave the lower court ruling in place? Why would a 5-3 ruling be any less precedent, than a 5-4 ruling? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 23, 2016, 6:21pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/4 "2016-02-23T18:21:12Z")
What about a 4-3 ruling? I’m thinking of Fisher v. UT in which Kagan has recused herself. Must their be a majority of the whole number of seats on the Court or simply a majority of those present and voting? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 23, 2016, 6:52pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/5 "2016-02-23T18:52:05Z")
Quorum is six, so I would think four is the minimum needed to make a majority decision. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 23, 2016, 6:57pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/6 "2016-02-23T18:57:42Z")
I don’t think it matters so long as there is a majority that concurs in the result. Though the Arizona Supreme Court once [refused to follow](https://casetext.com/case/roofing-wholesale-co-inc-v-palmer) a 4-3 SCOTUS decision (_Fuentes v. Shevin_), on the grounds that it didn’t believe that the full Court would have reached the same result. The SCOTUS cases cited in _Palmer_ seem of dubious relevance to me, since they all discuss plurality opinions rather than a majority of the justices deciding the case. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 23, 2016, 6:57pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/7 "2016-02-23T18:57:49Z")
> [@Omar\_Little](#): > > Why would a 5-3 ruling be any less precedent, than a 5-4 ruling? I dunno, just wondering if the lack of a justice does anything ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 23, 2016, 8:04pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/8 "2016-02-23T20:04:24Z")
> [@YogSothoth](#): > > I dunno, just wondering if the lack of a justice does anything The Supremes seem to get along very well with each other (unlike most of the political bloggers on the internet 🙂 ) If I remember correctly, most (more than 51%) of the Supremes decision are unanimous. The media outlets usually/only tell We the Public about the cases that could be close, or are controversial. Any 8-0, 7-1, 6-2, or 5-3 rulings would still amount to defining decision. A 4-4 decision would leave the last lower court’s ruling in place. The cases that had been assigned to Scalia should have been/will soon be reassigned by Chief Justice Roberts to the other Supremes. I’ll miss Scalia’s questions when the Supremes hear future final arguments and I’ll miss his interesting comments during the majority/minority opinions. But for the most part, IMHO, the Supremes will carry on as before. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 23, 2016, 8:38pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/9 "2016-02-23T20:38:37Z")
> [@doorhinge](#): > > The cases that had been assigned to Scalia should have been/will soon be reassigned by Chief Justice Roberts to the other Supremes. Only if the Chief and Scalia were on the same side. The Chief only assigns cases to a justice on the same side as him at the initial conference. So if he and Scalia were on the same side, then he could re-assign it. But if they were on different sides at the initial conference, then Scalia as senior justice on that side would have assigned it to himself. Now that he’s gone, the next senior justice on the same side as Scalia would re-assign it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 23, 2016, 8:41pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/10 "2016-02-23T20:41:15Z")
Huh. I just looked up SCOTUS seniority and all four of the most senior justices (well, until now) were GOP nominees. Though I suppose that’s just a function of Bush II getting to appoint the CJ. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 23, 2016, 11:07pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/11 "2016-02-23T23:07:41Z")
An interesting tidbit of information from the [SCOTUS FAQ page](http://www.supremecourt.gov/faq.aspx): > [@](#): > > Who decides how many Justices are on the Court? Have there always been nine? > The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 24, 2016, 3:41pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/12 "2016-02-24T15:41:50Z")
> [@Northern\_Piper](#): > > Only if the Chief and Scalia were on the same side. The Chief only assigns cases to a justice on the same side as him at the initial conference. So if he and Scalia were on the same side, then he could re-assign it. > > But if they were on different sides at the initial conference, then Scalia as senior justice on that side would have assigned it to himself. Now that he’s gone, the next senior justice on the same side as Scalia would re-assign it. Thanks for the correction. Scalia could only have written for the majority if it had already been determined in Justices’ Conference that he was in the majority (or minority, as the case may be). ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 24, 2016, 3:51pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/13 "2016-02-24T15:51:24Z")
> [@watchwolf49](#): > > An interesting tidbit of information from the [SCOTUS FAQ page](http://www.supremecourt.gov/faq.aspx): > > Quote > Who decides how many Justices are on the Court? Have there always been nine? > The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. It’s interesting that the Court originated with an even number of Justices (6) and has had as many as 10. Another even number. It seems that the current even number of Justices (8) should be able to handle the load until a new President is elected and makes their own choice. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 24, 2016, 4:43pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/14 "2016-02-24T16:43:38Z")
Sure. And the Senate could function perfectly well with 99 members if one died. We still have a special election to fill the seat when that happens, though, instead of wittering about how there’s only a year left in the term. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [February 24, 2016, 4:57pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/15 "2016-02-24T16:57:18Z")
Interesting article in [Slate](http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/john_roberts_will_not_let_there_be_chaos_at_the_supreme_court.html) on this very subject. ---
**Author:** ![Si\_Amigo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/si_amigo/32/2877_2.png) [@Si\_Amigo](https://boards.straightdope.com/u/Si_Amigo)\ **Post date:** [February 24, 2016, 5:24pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/16 "2016-02-24T17:24:51Z")
> [@YogSothoth](#): > > I dunno, just wondering if the lack of a justice does anything You mean like if the presidential election results are contested? Could a 4-4 decision mean a lower court ruling could decide who the President is? Could that ruling be re-addressed once a new President is in office and could the now fully manned Supreme Court for some reason reverse the decision? Highly unlikely but what if the new President was some hateful bigot and some justices changed there minds? Hmmm. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 24, 2016, 5:51pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/17 "2016-02-24T17:51:34Z")
As an aside, I keep reading the title of this thread as if it’s about the sequel to BIG HERO 6. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 24, 2016, 6:19pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/18 "2016-02-24T18:19:25Z")
The possibility of tie votes is being a bit overhyped. There might be some. But over the last 90 years there have been 164 tie votes at the Supreme Court (many when a justice recused himself/herself). That’s a 1.8 ties per year, on average. Sure, this may be an above average year. And perhaps a tie will come down on a major case. But the vast majority of cases do not end up 5-4. And even with a vacancy the large majority of decisions are not tied. And frankly, the Court sometimes chooses to take some lesser action that they can get greater unanimity on if it looks a like gathering a majority for a particular opinion might be difficult. We might see then punt it back to the lower court to reconsider some aspect of the case and hope to have a full bench by the time the matter reaches the SCOTUS again. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2016, 8:13pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/19 "2016-02-24T20:13:17Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Sure. And the Senate could function perfectly well with 99 members if one died. We still have a special election to fill the seat when that happens, though, instead of wittering about how there’s only a year left in the term. Not always. Sometimes we permit a governor to appoint a replacement first, to act until the special election. Another chance to remind readers of Massachusetts’ checked history in this regard: the Massachusetts state legislature has traditionally been dominated by Democrats. When Mitt Romney, a Republican, was governor, Massachusetts U.S. Junior Senator John Kerry was the Democratic candidate for President in 2004. If Kerry won, he would have to resign his Senate seat and Romney would be able to pick a successor. To guard against this possibility, the Democratic legislature passed a law over Romney’s veto that eliminated Romney’s appointment power and replaced it with a special election. As it happens, of course, Kerry did not win, but the law remained. Until 2009. Then the tragic death of senior U.S. Senator Ted Kennedy of Massachusetts meant that until the special election, the U.S. Senate would be shy one Democrat, and during the time that the health care act was being passed and every Democratic vote was needed. But now Massachusetts had a Democratic governor, so the legislature passed another bill restoring the governor’s appointment power until the special election could be held. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 24, 2016, 8:19pm UTC](https://boards.straightdope.com/t/scotus-8-justice-question/746892/20 "2016-02-24T20:19:41Z")
> [@Bricker](#): > > Not always. Sometimes we permit a governor to appoint a replacement first, to act until the special election. True. But the one thing we don’t do is leave the office vacant because there’s an election coming up. We _certainly_ don’t leave it vacant until another position is elected to appoint the replacement. > [@](#): > > Another chance to remind readers of Massachusetts’ checked history in this regard… Sure. And if Congress wants to amend the Judiciary Act to reduce the number of seats on the court, that is certainly within their power (Obama’s presumed veto notwithstanding) and could not be deemed “not doing their jobs” by even the most ardent Democratic supporter. But they don’t have the votes. [Next page](https://boards.straightdope.com/t/scotus-8-justice-question/746892.md?page=2)