In addition to the myriad constitutional and political issues that have been raised with respect to filling the Supreme Court vacancy resulting from Justice Scalia’s death, it is important not to lose sight of a practical issue at the heart of the matter—the Court needs nine justices to avoid tie votes. One of the Supreme Court’s principal responsibilities is to resolve disagreement in the federal appellate courts in order to ensure the law of the land remains uniform. A 4-4 tie, which allows for the lower court decision to stand, does just the opposite. Although this may bring resolution to the immediate parties before the Court, Supreme Court decisions are meant to have more significance due to the precedents they create. Indeed, the rules of the Supreme Court state that in deciding whether to grant a writ of certiorari the Court typically focuses on whether the lower court decision conflicts with a previous Supreme Court decision or with another lower court decision on an important question of federal law. The Supreme Court seeks these issues out in order to keep the law of the land uniform, and a 4-4 decision prevents the Court from rectifying that conflict.
Our research has shown that 5-4 decisions are commonplace and often occur in high-profile civil rights cases. Of the 1211 cases brought before the Court from 2000-2014, 260 of them were decided by a 5-4 vote (21.5 percent). And in the 2014 term alone, 19 of 71 (26.8 percent) cases were decided 5-4. According to the “Supreme Court Database,” cases involving issues related to civil rights accounted for the second most 5-4 decisions—trailing only criminal procedure cases. Moreover, since the October 2000 term, the Lawyers’ Committee has filed briefs in 26 cases that were decided by a 5-4 vote. Some of these cases have had an immense influence on the field of civil rights—including cases that affirmed the constitutionality of affirmative action in higher education (Grutter v. Bollinger); set forth the degree to which race could be considered in assigning K-12 students to schools (Parents Involved in Community Schools v. Seattle School District No. 1); struck down a central protection of the Voting Rights Act (Shelby County v. Holder); created more restrictive standards for what qualifies as a class-action lawsuit (Wal-Mart v. Dukes); and interpreted the Fair Housing Act to allow for disparate impact claims (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.). I expect the Court will split 4-4 in at least one of the cases in which the Lawyers’ Committee has filed a brief in this term.
In the event that President Obama does not appoint a nominee or the Senate does not confirm the president’s nominee, the Court will go almost two full terms with only eight members. This would not be good for the overall administration of justice and would have a pronounced effect on civil rights issues.
