# Why not just have Congress vote on 5-4 Supreme Court splits? **URL:** \ **Category:** Great Debates\ **Created:** [June 1, 2019, 1:27pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872 "2019-06-01T13:27:36Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 4, 2019, 5:22pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/21 "2019-06-04T17:22:35Z")
> [@DrCube](#): > > Does anybody really think the Court is doing a worse job than Congress? I’d rather SCOTUS pass laws, to be honest, and let the congressfolk beg for money, which they’re actually good at. Well, let’s keep in mind that the Supreme Court of the United States HAS managed some real clinkers over time. And, of course, some of what are considered bad decisions in retrospect were quite popular at the time, at least with one faction of American politics. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 5, 2019, 5:42pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/22 "2019-06-05T17:42:36Z")
I think a better thing to do would be to require a 6-3 majority or better to establish precedent. Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there’s no national precedent. The bigger questions are punted until another case where enough justices can agree. At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment. It would also make decisions more stable over time, which I think is generally something that’s good for a court system, even if it sometimes comes at the expense of justice. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 6, 2019, 5:44pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/23 "2019-06-06T17:44:40Z")
> [@iamthewalrus\_3](#): > > I think a better thing to do would be to require a 6-3 majority or better to establish precedent. > > Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there’s no national precedent. The bigger questions are punted until another case where enough justices can agree. > > At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment. > > It would also make decisions more stable over time, which I think is generally something that’s good for a court system, even if it sometimes comes at the expense of justice. There is no requirement that ANY Supreme Court decision act as “precedent”. It’s not written down in any rule, it’s not in the Constitution, it’s not part of any law. The “rule” of _stare decisis_ is nothing more than the common sense application of the idea that re-litigating issues when the same result will occur makes no sense, and re-litigating issues with the result in unpredictable results would be even worse (as you noted). If the Supreme Court decides today that Vipples are unconstitutional under the Fourteenth Amendment in a case decided 5-4, then there is no good reason for District Courts to proceed as if that isn’t “precedent” they should/must follow, because it’s entirely likely, if not certain, that if they ignore the precedent, their ruling won’t be over-turned 5-4 at the Supreme Court again. And the court can be just as political a creature with 6-3 or 7-2 votes. See _Roe v. Wade_. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 6, 2019, 7:12pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/24 "2019-06-06T19:12:34Z")
> [@iamthewalrus\_3](#): > > I think a better thing to do would be to require a 6-3 majority or better to establish precedent. > > Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there’s no national precedent. The bigger questions are punted until another case where enough justices can agree. > > At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment. > > It would also make decisions more stable over time, which I think is generally something that’s good for a court system, even if it sometimes comes at the expense of justice. So Obergefell can marry another man, but nobody else can have a SSM? That makes little sense. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [June 8, 2019, 12:39am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/25 "2019-06-08T00:39:41Z")
Why not simply burn the Constitution, and allow a king to take power, and rule by decree? Why not simply have [www.vote.gov](http://www.vote.gov) and require a majority for any action by government? Half the people who are legally eligible to vote do not do so. In local elections the number is closer to three quarters. When they are very lucky, republics and democracies get the government they deserve. The rest of the time they get to pay for whatever government chooses to spend their money. Tris * * * Eventually it comes down to pitchforks and torches in front of the mansions. The automatic weapons fire restores the balance. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 8, 2019, 4:39pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/26 "2019-06-08T16:39:54Z")
> [@TriPolar](#): > > You’re right about that. I just get pissed at congress for not following up on some cases with better law. They use court decisions as an excuse to let issues continue to be batted around in the courts instead of creating constitutional laws to settle the issues. Which is a fair point – ideally, if the judiciary strikes down some law or administrative provision, the thing to do would be for the legislative and executive to come up with a _new, better, more carefully prepared law/regulation that meets constitutional muster and addresses the defect in the prior one (which is_ not\*\* the same thing as legislative trolling to force the issue over and over again). But then that would mean actually going on the record voting for some compromise other than the facile campaign slogan, easier to go \*“if only the activist judges did not stop us!” \* And yes, if the issue is tough and divisive you should expect to see a divided court, it’s not \*always _bloody obvious what’s the right answer. And as cited above, some historic clunkers and aberrations passed by very comfortable margins and some triumphs of justice just squeaked by. Now, from my POV a close decision should serve as a signal to the political branches that they should tread lightly on that issue, and that is not what they do because, again, easier to campaign on_ “One more seat or it’s the End Of Freedom!!!” \* ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 11, 2019, 11:34pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/27 "2019-06-11T23:34:58Z")
> [@UltraVires](#): > > So Obergefell can marry another man, but nobody else can have a SSM? That makes little sense. That’s what would have happened if one of the five justices who voted in his favor had recused themselves for some reason. So, maybe it doesn’t make sense, but it’s already an outcome of the system when there isn’t a general agreement among the court. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 12, 2019, 5:26pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/28 "2019-06-12T17:26:48Z")
> [@iamthewalrus\_3](#): > > That’s what would have happened if one of the five justices who voted in his favor had recused themselves for some reason. > > So, maybe it doesn’t make sense, but it’s already an outcome of the system when there isn’t a general agreement among the court. Not true. The _Obergfell_ case was an appeal from the determination of the Sixth Circuit Court of Appeal that same gender marriages could be barred constitutionally. But prior rulings in the Fourth, Seventh, Ninth, and Tenth Circuits had determined such state laws unconstitutional. Had the Supreme Court been unable to reach a determination on the appeal (say, by 4-4 split), then the Sixth Circuit would still have been bound by the upheld ruling they had issued. So states in the Sixth Circuit could have barred such marriages, but the rulings from the other circuits would have remained valid precedent in those circuits, precluding states in those circuits from barring such marriages. For circuits without a decision, no precedent would exists, so state laws barring same gender marriage would have continued to be valid unless/until tested in them. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 12, 2019, 7:43pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/29 "2019-06-12T19:43:39Z")
Sorry, my answer was sloppy, and thank you for providing the correct facts. My point was: there is a thing that happens when there is an evenly split decision, which is that some cases are decided and some are not, but there is no national precedent established. The state of the law is in limbo. I think that same thing should happen when there is a 5-4 decision. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 13, 2019, 12:23am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/30 "2019-06-13T00:23:41Z")
> [@iamthewalrus\_3](#): > > Sorry, my answer was sloppy, and thank you for providing the correct facts. > > My point was: there is a thing that happens when there is an evenly split decision, which is that some cases are decided and some are not, but there is no national precedent established. The state of the law is in limbo. > > I think that same thing should happen when there is a 5-4 decision. But the whole point is that that’s completely ignoring the rationale for _stare decisis_. It’s not about someone having a “rule” that governs what to do with Supreme Court decisions (or any other decision). It’s about simply avoiding the futility and unpredictability of constantly re-litigating an issue that’s already decided. It’s an extension of the principles of _res judicata_ and collateral estoppel. Let me ask you this: do you think that a Court of Appeals panel decision that goes 2-1 should be lacking precedential value? What about an _en banc_ decision that splits so that the majority have just one vote more? How far does this concept go? Do you realize just how much extra litigation would occur if this concept was implemented? :smack: ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 13, 2019, 12:46pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/31 "2019-06-13T12:46:28Z")
> [@Aeschines](#): > > I get what you’re saying, but why should SCOTUS _vote_ in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn’t. In the case of such a vote, the court is not acting as a court but as a legislature. Acting as the the legislature, who votes on bills handed to them by lobbyists, without having read, reasoned, and understood such bills? The Court doesn’t just blithely sit around the table like an HOA board and call for a show of hands. The members are scholars, and they understand law. They write out long opinions justifying their positions, citing precedents, citing the laws as written. We certainly deserve a Supreme Court that can filter through the nonsense that comes from our House of Representatives. (I know, the Senate has to pass bills, too, but they’re generally not as stupid as the House). ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 13, 2019, 3:27pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/32 "2019-06-13T15:27:34Z")
> [@Balthisar](#): > > We certainly deserve a Supreme Court that can filter through the nonsense that comes from our House of Representatives. (I know, the Senate has to pass bills, too, but they’re generally not as stupid as the House). All bills have to be passed by both the House and the Senate, with exactly the same language. If a bill is passed with different language in the two, it goes to a conference committee that hammers out a compromise and then the revised, identical bill goes back to both houses. If again passed, it is that bill that becomes law. I’m not sure how you figure out from that what language in what bills is the responsibility of one house over the other. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 13, 2019, 4:58pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/33 "2019-06-13T16:58:41Z")
> [@DSYoungEsq](#): > > But the whole point is that that’s completely ignoring the rationale for _stare decisis_. It’s not about someone having a “rule” that governs what to do with Supreme Court decisions (or any other decision). It’s about simply avoiding the futility and unpredictability of constantly re-litigating an issue that’s already decided. It’s an extension of the principles of _res judicata_ and collateral estoppel. People re-litigate anyway any time there’s a one-justice change in the court and they think they can have a new test case. > [@](#): > > Let me ask you this: do you think that a Court of Appeals panel decision that goes 2-1 should be lacking precedential value? What about an _en banc_ decision that splits so that the majority have just one vote more? How far does this concept go? It applies only to SCOTUS. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 14, 2019, 12:56am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/34 "2019-06-14T00:56:41Z")
> [@Exapno\_Mapcase](#): > > I’m not sure how you figure out from that what language in what bills is the responsibility of one house over the other. Easy. Because you can see the House bills and Senate bills before the enrolled bill is passed forward for signature. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 14, 2019, 4:23am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/35 "2019-06-14T04:23:31Z")
> [@iamthewalrus\_3](#): > > People re-litigate anyway any time there’s a one-justice change in the court and they think they can have a new test case. Name me a 5-4 case that was “re-litigated” the minute there was a one-vote switch. :rolleyes: ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 14, 2019, 9:33pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/36 "2019-06-14T21:33:00Z")
> [@DSYoungEsq](#): > > Name me a 5-4 case that was “re-litigated” the minute there was a one-vote switch. :rolleyes: Wasn’t a _third_ case just filed against that Colorado bakery? ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 14, 2019, 9:39pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/37 "2019-06-14T21:39:24Z")
To clarify my point which I’ve realized isn’t obvious (since I know that Colorado v. Masterpiece Cakeshop wasn’t a 5-4 decision): People will relitigate anything at conflict constantly. I’m not convinced that they would do so _more_ with my proposed change. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 14, 2019, 10:55pm UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/38 "2019-06-14T22:55:21Z")
> [@Balthisar](#): > > Easy. Because you can see the House bills and Senate bills before the enrolled bill is passed forward for signature. OK, I’m very impressed that you take it that far. Can you provide some examples of stupidity in the House that is not matched by the Senate? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 15, 2019, 2:49am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/39 "2019-06-15T02:49:03Z")
> [@iamthewalrus\_3](#): > > To clarify my point which I’ve realized isn’t obvious (since I know that Colorado v. Masterpiece Cakeshop wasn’t a 5-4 decision): People will relitigate anything at conflict constantly. I’m not convinced that they would do so _more_ with my proposed change. What gets litigated after a decision isn’t a “re-litigated” case. What happens is people start trying to fill in the blanks, or chip away at the precedent set. We’ve seen that over the decades with _Roe v. Wade_, where the basic rule (based on trimesters) has been nibbled at, and blanks spaces filled in. Re-litigating the case would mean literally taking the same facts and asking for a different decision on the law. That almost never happens because, you know, _stare decisis_, collateral estoppel, and _res judicata_. 😉 ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [June 17, 2019, 4:06am UTC](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872/40 "2019-06-17T04:06:33Z")
> [@DSYoungEsq](#): > > Re-litigating the case would mean literally taking the same facts and asking for a different decision on the law. Now it’s my turn: give me an example of two cases with the same facts 😉 It seems to me that what would happen in a case that was literally the same facts is that the various appellate courts would do what they do and the Supremes wouldn’t grant cert. You’d get regional precedents but not nationwide precedent. And then when the composition of the court changed then maybe they’d grant cert to the next one that showed up. In actuality, though, no two cases have the same facts. There’s always _enough_ of a difference that if there’s a new justice who wants to overturn precedent, then there’s a plausible claim that this new case is enough different from the previous one that it can be heard. [Previous page](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872.md?page=1) [Next page](https://boards.straightdope.com/t/why-not-just-have-congress-vote-on-5-4-supreme-court-splits/834872.md?page=3)