# Supreme Court: split majority decision **URL:** \ **Category:** Factual Questions\ **Created:** [October 13, 2017, 3:51am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701 "2017-10-13T03:51:42Z")\ **Posts on this page:** 10\ **Page:** 2
**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:** [October 14, 2017, 3:12am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/21 "2017-10-14T03:12:24Z")
> [@Loach](#): > > How about instead of precedent we use case law? Precedent isn’t just there to keep courts from being overruled it has the same weight as law since we work under a common law system. A lawyer can use fancy lawyer speak to pretty that up. Because not all cases are precedents. It depends on the court that decided the case, and the court where the case is being cited. A decision from the highest state court on a question of state law is binding precedent on all lower state courts, but is not binding precedent on the courts in any other state, even if the statute in the other state is worded identically. That case is called “persuasive” in the other state, not a precedent. However that state Supreme Court decision interpreting state law would be binding precedent on the federal courts in that state, and even on the Supreme Court of the United States, if a case from that state went to SCOTUS. Federal courts can’t disagree with the interpretation of state law by state courts. And a decision from the Supreme Court of the US may not be binding precedent. For example, if a case is appealed to the Supreme Court of the US and that Court divides evenly, the appeal is dismissed but it doesn’t set a precedent. ( **DSYoungEsq** may remember a law journal article I pointed out to him on this very issue several years ago. 🙂 ) ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 14, 2017, 3:15am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/22 "2017-10-14T03:15:00Z")
> [@Northern\_Piper](#): > > Your lawyer friend was talking through his hat, for Canada at least. Judicial councils have no power to review the merits of a judge’s decisions based on appellate record. A judge has a constitutional right to be wrong, and can’t be sent to re-education because the appeals court has overturned a lot of their decisions. > > Judicial councils are to review allegations of misconduct, not a judge’s track record in the appeals court. This was decades ago. The local judge was an irascible a\*\*\*\*le and an alcoholic (Even got a DUI ticket from a rookie RCMP who wasn’t going to be intimidated by “do you know who I am?!” Back when DUI was a slap on the wrist…). What the lawyer also said was - “I have more freedom - I come to this town once or twice a year. if the judge gives out a sentence that’s excessive, I appeal - and he knows it, so it’s actually a plus when I appeal. It puts him in his place. [insert comment about appeal court] If a local lawyer has the temerity to appeal his judgement, he knows the judge will get even by giving the rest of his clients stiff sentences, so they do not dare appeal.” May not have been the judicial council, but someone in the system keeps track of a judge’s behaviour and whether he is not up to standards. ---
**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:** [October 14, 2017, 3:20am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/23 "2017-10-14T03:20:29Z")
> [@Little\_Nemo](#): > > What happens if there are two vacant seats on the court or if two Justices recuse themselves and it’s a 4-3 decision? Is that considered a precedent-setting majority? I believe it would be. Quorum on SCOTUS is 6 justices, so a decision by 7 of them is a binding decision. (Just speaking from general principles here. I defer to any of my learned US law-talking colleagues on this point. It certainly would be binding precedent in Canada if the Supreme Court of Canada gave a 4-3 decision.) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 14, 2017, 5:30am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/24 "2017-10-14T05:30:29Z")
The thread title reminded me of announcing the results of a boxing match. Imagine the Chief Justice announcing a new abortion decision: The vote is 5 to 4… for the WINNER, and…STILL… binding precedent… Roe… v… Wade!!! ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 14, 2017, 5:40am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/25 "2017-10-14T05:40:54Z")
> [@UltraVires](#): > > The thread title reminded me of announcing the results of a boxing match. Imagine the Chief Justice announcing a new abortion decision: > > The vote is 5 to 4… for the WINNER, and…STILL… binding precedent… Roe… v… Wade!!! Ah yes, the famous Brouha in the Hooha. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 14, 2017, 2:11pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/26 "2017-10-14T14:11:10Z")
> [@Northern\_Piper](#): > > I believe it would be. Quorum on SCOTUS is 6 justices, so a decision by 7 of them is a binding decision. Is the Quorum number independent of the number of justices? What if the court is down to 5 justices-- do they just sit around and do nothing until another justice gets appointed? ---
**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:** [October 14, 2017, 2:38pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/27 "2017-10-14T14:38:46Z")
Yes, it’s a fixed number of six, so if they drop below six they can’t do anything which requires a decision by the Court. See: [28 U.S. Code § 1 - Number of justices; quorum | U.S. Code | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/uscode/text/28/1) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 14, 2017, 3:57pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/28 "2017-10-14T15:57:24Z")
> [@Northern\_Piper](#): > > Yes, it’s a fixed number of six, so if they drop below six they can’t do anything which requires a decision by the Court. > > See: [28 U.S. Code § 1 - Number of justices; quorum | U.S. Code | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/uscode/text/28/1) Unless, of course, Congress passes legislation revamping the Court. Which it is entitled to do (see: Court-packing scheme 😃 ). ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 15, 2017, 7:52pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/29 "2017-10-15T19:52:31Z")
Yes, Congress can change the size of SCOTUS at will. When Andrew Johnson was President, Congress passed a bill over his veto shrinking the court by one for each justice who died or retired. When he left office, they increased its size to nine again, for U.S. Grant to fill 'er up again. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 16, 2017, 4:31am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/30 "2017-10-16T04:31:06Z")
> [@Northern\_Piper](#): > > And a decision from the Supreme Court of the US may not be binding precedent. Along this line, the Court can expressly designate that a decision is not precedential. Appellate courts can do the same thing as to their decisions. [Previous page](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701.md?page=1)