# What happens when SCOTUS is 3-3-3? **URL:** \ **Category:** Factual Questions\ **Created:** [January 26, 2007, 2:49pm UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556 "2007-01-26T14:49:53Z")\ **Posts on this page:** 6\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 26, 2007, 10:58pm UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/21 "2007-01-26T22:58:03Z")
BTW, this is what happens if the court is equally divided (4-4) about the result of the case: > [@](#): > > PER CURIAM. > > The judgment is affirmed by an equally divided Court. _Williams & Wilkins v. United States_, 420 U.S. 376 (1975): [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=420&invol=376](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=420&invol=376) The Court issues no opinion and leaves the lower court’s decision standing. No precedential value is given to the Supreme Court’s decision. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 26, 2007, 11:11pm UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/22 "2007-01-26T23:11:55Z")
Here is another example of a badly splintered Court: > [@](#): > > SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined, and in which WHITE, J., joined as to Parts I, II-A, II-B, and II-C. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 628. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, post, p. 628. STEVENS, J., filed an opinion concurring in the judgment, post, p. 640. _Burnham v. Superior Court_, 495 U.S. 604 (1990): [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=604](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=604) (approving tag jurisdiction) Personal jurisdiction questions produced a lot of divided courts (\*Asahi \* was also a personal jurisdiction case). ---
**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:** [January 27, 2007, 2:06am UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/23 "2007-01-27T02:06:12Z")
It gets even more wonky when the plurality does not support the disposition of the case (i.e. - the single largest block of judges would have done the opposite of what actually happens with respect to appeal allowed or dismissed). Suppose you’ve got nine judges sitting on an appeal from a conviction, and the appeal raises two issues: does the Court have jurisidiction to hear the case? and should the evidence in question have been admitted? Let’s further suppose that four of the judges are satisfied that the Court has jurisdiction, and then conclude that the evidence should not have been admitted, so they would allow the appeal. However, three of the judges think that the Court doesn’t have jurisdiction to allow the appeal. They therefore would dismiss the appeal. Being minimalists, they conclude that since the Court doesn’t have to decide the question of the admissibility of the evidence, they won’t deal with that issue. In their reasons, they state that they are intentionally not dealing with the evidential issue. The remaining two judges think the law is clear that the evidence was proprerly admitted, but they think the jurisdictional issue is complex and should be left to another day. Since ruling on the evidence issue is sufficient for them to dismiss the case, they say, “Assuming the Court has jurisdiction (but not deciding it at this time), the evidence was properly admitted” and they would dismiss the appeal. So the result is 5-4 in favour of dismissing the appeal. Of the majority in favour of dismissal, three dismiss for want of jurisdiction, two because the evidence was properly admitted. The plurality on the reasons is in the dissent on the result, since those four judges would have allowed the appeal. Nor is there a clear majority on either the jurisdictional issue (4 thought there was jurisdiction, 3 did not - and the three are in the majority on the result, the four are dissenting on the result), or on the evidence issue (4 would have ruled it inadmissible, 2 admitted, and the 2 are in the majority on the result, and the 4 are in the dissent on the result). And this hypothetical assumes that the plurality hangs together, with the same four judges voting the same way on both issues. When they don’t do that, with shifting views on each of the issues, the result can be as described in some of the above summaries. ---
**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:** [January 27, 2007, 2:11am UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/24 "2007-01-27T02:11:28Z")
[QUOTE=Gfactor] BTW, this is what happens if the court is equally divided (4-4) about the result of the case: > [@](#): > > PER CURIAM. > > The judgment is affirmed by an equally divided Court. _Williams & Wilkins v. United States_, 420 U.S. 376 (1975): [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=420&invol=376](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=420&invol=376) The Court issues no opinion and leaves the lower court’s decision standing. No precedential value is given to the Supreme Court’s decision. [/QUOTE] That’s the practice in the SCOTUS, but different final appellate courts take different perspectives on that issue. For example, in the House of Lords on an even division, the opinion in favour of dismissing the appeal is considered a binding precedent. The reasoning is that a majority is necessary to allow an appeal. Since there was no majority in favour of allowing, the judgment for dismissal is the best explanation of their Lordships’ views, and is binding on lower courts. The Supreme Court of Canada takes a position in-between. They state that on an even division, neither of the sets of reasons is a binding precedent. However, since the judgment to dismiss is what actually happened, that set of reasons will be more persuasive in future decisions than the reasons in favour of allowing the appeal. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 27, 2007, 2:41am UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/25 "2007-01-27T02:41:18Z")
[QUOTE=Northern Piper] For example, in the House of Lords on an even division, the opinion in favour of dismissing the appeal is considered a binding precedent. The reasoning is that a majority is necessary to allow an appeal. Since there was no majority in favour of allowing, the judgment for dismissal is the best explanation of their Lordships’ views, and is binding on lower courts. The Supreme Court of Canada takes a position in-between. They state that on an even division, neither of the sets of reasons is a binding precedent. However, since the judgment to dismiss is what actually happened, that set of reasons will be more persuasive in future decisions than the reasons in favour of allowing the appeal. [/QUOTE] There used to be a related pitfall under U.S. law. According to Judge Aldisert: > [@](#): > > Prior to 1988, a real difference existed between the two methods of seeking U.S. Supreme Court review: the first, by “a petition for certiorari”; the other, by “appeal by a party.” Although the Court seemed bound by law to hear all “appeals” from the state courts (presenting an appropriate constitutional law challenge), because of the vast number of cases, it devised a concept of dismissing appeals “for lack of jurisdiction,” ostensibley for the reason that no substantial federal question had been raised. Although recorded case law is scant, if in fact non-existent, many astute lawyers in the criminal law field believed that where a direct appeal from a state court decision had been denied by the Supreme Court, the appellant was then precluded from seeking relief to the federal court under federal habeas corpust, because the Court had rendered a final decision that no substantial federal question was presented. In other words, this decision was considered to be a binding precedent. . . . Congress eliminated this trap for the unwary . . . . In 1988, it amended section 1257 of title 27 to abolish “appeal” [and now permits only review by writ of certiorari]. Aldisert, Ruggero, _Precedent: What It Is and What It Isn’t: When Do We Kiss It and When Do We Kill It?_, 17 Pepp. L. Rev. 605 (1990) ---
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [January 27, 2007, 9:41pm UTC](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556/26 "2007-01-27T21:41:23Z")
Thank you all for the definitions and explanations. I didn’t realize that multiple opinions were issued when they agreed on the disposition. This thread has been a fascinating lesson in the workings of SCOTUS. I apologize for sidetracking it. [Previous page](https://boards.straightdope.com/t/what-happens-when-scotus-is-3-3-3/389556.md?page=1)