By Justin Pidot. Full text here.
What should the Supreme Court do with a tie vote? A long-standing rule provides that when the Justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia raises the specter that the Supreme Court may be entering a period in which a spate of high-profile and contentious cases end in deadlocks.
This Article constitutes the first detailed empirical analysis of whether the Supreme Court’s current approach to tie votes makes sense, presenting an original study of the 164 instances in which a tie vote occurred between 1925 and 2015. Those data reveal two important trends, both of which suggest the current approach is at best unnecessary. First, where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance. Second, only one of the 164 cases would today fall within the Supreme Court’s limited mandatory jurisdiction. The remainder would arrive at the Court on a writ of certiorari, a docket that is entirely discretionary.