Suppose that Roberts’ nomination gets tied up in Congress long enough that when the Supreme Court reconvenes in October, there are only eight justices on the bench. Suppose further that a highly contentious case is appealed to the Supreme Court while there are eight justices on the bench, and the justices split 4-4 on their decision.
What happens then? Would the decision of the lower court stand by default, or would some arcane procedure be activated? I wouldn’t be surprised if this has happened in the past (say, if a justice recused him or herself), but damned if I know how to search for it.
In that case I’m pretty sure the lower court’s decision stands. The last time this was a possibility was in the ‘Pledge of Allegiance’ case. Scalia recused himself because he’d already made his views on that issue clear in speeches.
When the Court is deadlocked, two of the justices on each side are taken to a secret cavern below the Courthouse where the disembodied brains wager Quatloos on the outcome while bad music blares over the loudspeakers. Each participant is given a weapon and can only step on their own color.
Next match: Clerence Thomas vs Ruth Bader Ginsburg! I wager 20 Quatloos on Thomas.
Yes, the lower court’s decision stands if the Supremes deadlock. If it’s an issue of great national import or interest, the case might very well be set for reargument when the Court is back to its full bench of nine. The AP has already reported that the justices may schedule really contentious cases for later in the term (which starts the “first Monday in October,” Oct. 3), which makes sense. The Court controls its own docket and selects which cases it will hear, and most aren’t on 5-4 votes when eventually decided, so this isn’t as big a deal as you might think.
I was under the impression that the SC couldn’t hear a case more than once, although I suppose that if there was an exception to this rule, this would be it. Is this treated essentially like a mistrial in a lower court? Are there any other situations in which the SC can revisit cases that have already been argued before it?
Also, what’s the quatloo-dollar exchange rate these days?
Nope. The Court cannot accept new evidence, but it can schedule additional oral argument if it feels it’s warranted. Indeed, Judge Roberts tells a story against himself of arguing a case in front of an eight-member Court while Justice Thomas’ nomination was pending. It was set for reargument after Thomas’ confirmation so he could fully participate in the decision. Roberts prepared his standard five minutes of material (for a half-hour slot), expecting to be peppered with questions as usual. But the other justices had already had their questions answered, so they deferred to Thomas, and (although no one knew this at the time), Thomas never says anything. Roberts did his five minutes, spun his wheels for another several minutes trying to come up with something interesting to say, and finally just gave up and sat down.
In case this is intended as a reaction to Robert’s being shifted to replace Rehnquist, keep in mind that O’Conner said she wouldn’t resign until her replacement is confirmed. At any rate, it’s highly unlikely that we’ll go into the next session with only 8 sitting justices.
Oh, and 60 Quatloos on Thomas. Once he whips out one of those pubic hairs, Ginsburg will wilt.
Also, to my understanding, the Supreme Court is not required to hear or decide on cases within a certain time frame. If the Court knows that there are controversial cases in which there could be a 4-4 vote, the Court could defer those cases for whatever time in order to have the Senate confirm a 9th justice.
What if the Supreme Court is excercising it’s original jurisdiction? It rarely does and I don’t think it’s scheduled too in the upcoming session but what if?
In that case, the matter would be referred to a special master for factual finding recommendations. More likely than not, if there was going to be controversy about the outcome, action on the recommendations would be deferred to a full compliment.
There’s always been a certain amount of secrecy regarding their procedures - not allowing cameras, and so forth. But my impression has always been that it’s an open secret that this is how they conduct oral arguments as it is. The most junior Associate Justice is traditionally, though not legally, bound to provide munchies.
