In this Supreme Court, not all ties are equal

Since the death of Justice Antonin Scalia in February, many legal observers have debated how the eight-justice United States Supreme Court will navigate cases where they're ideologically split down the middle. 

Faced with a series of contentious decisions, and the prospect that Justice Scalia's seat may not be filled until after the presidential election, a burst of activity from the short-handed court on Tuesday suggests it may have possible solutions. It also signaled that, experts say, with thorny legal cases, it may try to avoid a deadlock.

With such cases seemingly destined for a conservative-friendly verdict months ago, their futures are now much more uncertain. And the orders seem to have stiffened the resolve of Senate Republicans seeking to block the appointment of Merrick Garland, President Obama's nominee to replace Scalia. 

The eight justices have already indicated they are comfortable issuing 4-to-4 decisions, which affirm the lower court decision and create no national precedent. Last week, the court issued such a decision in a low-profile case about spouses' responsibility for each other's debts. On Tuesday, the court tied again, this time in a high-profile case on union dues that, for liberals, turned almost certain defeat into an uncertain victory.

After arguments last week in a case involving religious freedom and women’s contraceptive rights, the justices seemed destined for another tie vote. Such an outcome would have been "the worst case scenario," legally speaking, the Monitor reported last week, given that multiple lower courts had issued conflicting rulings. That means a tie would leave the contraception law applying in some states and not others. 

On Tuesday, the court issued a two-page order asking both parties in the case to provide additional briefings on the possibility of a compromise. Given the complicated legal consequences in the case, observers say the move may indicate a desire to reach a definitive verdict.

Unions case

There was much less legal confusion attached to a 4-to-4 tie in the unions case decided on Tuesday. Before Scalia's death, the case, Friedrichs v. California Teachers Association, seemed a likely victory for 10 California public school teachers challenging whether they should be required to pay union fees. 

"Supreme Court seems poised to deal unions a major setback," read the New York Times headline after arguments in January.

Almost two months the later, the court’s decision was very different, and very brief: "The judgment is affirmed by an equally divided Court."

The ruling was not only a victory for unions, but also a tidy legal outcome. The tie vote simply affirmed the ruling of the US Ninth Circuit Court of Appeals, which sided against the teacher in upholding the precedent the Supreme Court set in a 1977 case: nonunion members could be required to pay "fair-share" fees for collective bargaining purposes, but could not be forced to pay fees supporting the union's political advocacy. 

As evidenced by the court's reaction to the contraception case, however, different cases could provoke different reactions—including a concerted effort to avoid a tie vote.

"Every set of issues and every case is going to be different," says Angela Cornell, director of the Labor Law Clinic at Cornell Law School, "but because [the justices'] views can be so divergent, I know it's very likely we'll see more cases with a 4-to-4 split."

In the case of Friedrichs, the legal stakes might not have been high enough to persuade a justice to change their vote and avoid a tie, says Mark Hurwitz, a political scientist at Western Michigan University in Kalamazoo.

"I wouldn't be surprised if Chief Justice [John] Roberts tried to get someone to compromise" on Friedrichs, he adds. "It didn't happen today, but there was no lower court division in this case."

"On these cases where the court’s divided, they’re not going to try and overcome their division," he continues.

Tie votes create other kinds of uncertainty, however, even if it affirms a uniform lower court ruling. In all Supreme Court cases, parties are allowed to petition for a rehearing, but in the event of a 4-to-4 decision it’s unclear when those petitions would be handled.

Uncertain procedures

One such petition is coming. Terry Pell – president of the Center for Individual Rights, a nonprofit law firm that brought the Friedrichs case on behalf of the plaintiffs – said that they are preparing to file a rehearing petition within the next few weeks, and expect it would be left until a new justice is appointed and a full court can vote on whether to rehear it.

"Our understanding in recent years on these types of cases is the court holds the petition until it can be decisively voted on by nine justices," said Mr. Pell in a conference call with reporters on Tuesday.

But given the stiff opposition from Senate Republicans to holding a hearing for Mr. Garland, the open seat is creating ambiguity over the court’s rehearing procedures. A rehearing petition must be filed within 25 days, SCOTUSblog's Lyle Denniston reported. Five justices normally have to vote in favor of hearing a case again, including one who had joined in the majority decision.

"It is unclear how that rule would work when the judgment had been reached by an evenly divided Court," added Mr. Denniston.

"If the GOP position does not change, a new justice might be approved in a post-election Senate session," he continued, "but otherwise would probably not be approved in time to join the Court before next March."

Whether or not the eight-justice court is able to avoid tie votes in contentious cases, the uncertainty appears to be inflaming the political debate over Republican opposition to Judge Garland’s nomination. For many liberals, the turmoil is proof that the court needs a ninth justice as soon as possible. For many conservatives, the turmoil is preferable to a court with a ninth justice who would be part of the liberal wing of the court. 

For the court itself, where justices have lifetime appointments and there is less pressure to act as quickly as possible, waiting may also be an acceptable option, according to Professor Hurwitz.

"The Supreme Court will go into a holding pattern," he says. "If they hear [a case] next term or the term after that, that's fine… There are eight to ten thousand petitions a year to the Supreme Court. If there's a case out there they want to hear, they'll find a way to hear it."