An Empty Seat: The Consequences of an Eight Justice Court and the Opportunity For An Even Split

BROOKE PATTERSON—The surprising death of Associate Supreme Court Justice Antonin Scalia in early February was met with a mixture of shock and surprise. Whether you agreed or disagreed with his arguments or opinions, his death leaves the Court with only eight sitting justices, until a new justice can be confirmed. And while there have been guesses as to who will be chosen to take Justice Scalia’s seat on the bench, there has been no immediate push to hold hearings for Obama’s nominee—Merrick Garland. This leaves the court with the potential for a 4–4 split.

While there is no guarantee that the court will have a 4–4 split on the cases presently before it, a 4–4 split inhibits the creation of precedent on important issues before the Court. An even split in the justices would be an automatic affirmance of the lower court decision. Looking at four cases currently before the Court this term illustrates the effects of an even split on issues such as unions, abortion, immigration, and access to contraceptives.

In Friedrichs v. California Teachers Association, which addresses whether public sector unions can charge fees to non-members, the Ninth Circuit ruled in favor of unions. The Ninth Circuit found that the fees did not violate the rights of non-members. A 4–4 decision in the Court could keep the ruling in favor of the unions in place.

In Whole Woman’s Health v. Hellerstedt, addressing whether abortion clinics have to meet for surgical centers places an undue burden on a woman’s right to an abortion, the Fifth Circuit upheld the requirements against the clinic. The Court recently heard oral arguments on this case and a 4–4 split would uphold the restrictions against the clinics. A 4–4 split would lead to inconsistent abortion regulations across the nation, would set no national rules, and the constitutional provisions would remain the same.

In United States v. Texas, discussing the constitutionality of President Obama’s deferred action immigration initiative, the Fifth Circuit stated that the programs seemed to violate federal law. The case before the Court includes not only Texas, but twenty-five other states challenging the programs. A 4–4 decision by the Court would keep the President’s programs on hold, as their constitutionality would not have been determined.

Finally, Zubik v. Burwell addresses whether accommodation for religious nonprofit organizations such as school and hospital regarding the Affordable Care Act’s contraceptive mandate violates federal law. The case before the Court consolidates seven cases from several circuits, all stating that the accommodation does not burden religious exercise. The consequence of a 4–4 split would affirm the appellate court decisions allowing the accommodation.

The second option for the Court would be to set the cases aside for re-argument in the fall in the hopes that it will be decided by a full panel of justices. However, holding over a case would only likely happen if the Court had the impression that a new justice would be confirmed in a short time. If it appears that the Senate will not confirm a candidate in a timely manner, the Court may not wish to hold over multiple cases.

The discussion of the consequences of an even split of the Court is dependent upon exactly that, an even split. It is extremely likely that the Court, in the wake of Justice Scalia’s death, will find a way to keep on creating precedent and avoid a 4–4 split.

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