With the Supreme Court poised to issue rulings as early as Thursday on two of the most contentious cases on its docket — one on abortion, the other on immigration — a looming question remains. Will the high court make new law, or no law?
Decisive rulings in both cases will affect millions of women and immigrants. Deadlocked decisions with 4-4 votes, however, will change little on the national legal landscape.
The justices will issue rulings in some of the eight cases they have remaining on Thursday, although it’s not know whether opinions on the highest-profile cases will be released then.
Since Justice Antonin Scalia died in February, the court has had only eight of its allotted nine justices. Senate Republicans are refusing to vote on Judge Merrick Garland, President Obama's nominee to replace Scalia. This means it's possible the court will be evenly split — with a 4-4 vote — when it decides one or both of the high-stakes cases.
“Eight, as you know, is not a good number for a multi-member court,” Justice Ruth Bader Ginsburg told a judicial conference last month in Saratoga Springs, N.Y. If there’s a 4-4 vote, she said, “That means no opinions and no precedential value; an equal division is essentially the same as a denial of review.”
In other words, it will be as if the Supreme Court never heard the case to begin with. When there is a tie vote, the previous ruling by the lower court stands.
In Georgia, if the seven-member state Supreme Court finds itself one justice short, it will appoint a lower-court judge to hear a case to ensure there will be no tie vote. That’s also true in more than 30 other states. But that’s not the case for the nation’s highest court; if a justice dies, becomes gravely ill or declines to hear a case because of a conflict of interest, there are no replacements.
The two key cases this term that could end with a tie vote are:
- A challenge to a Texas law that imposes great restrictions on abortion clinics. The statute requires the clinics to meet the same standards as ambulatory surgical centers and requires the clinics' doctors to have admitting privileges at nearby hospitals. Court records say the law could leave Texas with only nine abortion clinics statewide. A federal appeals court upheld the law, meaning a tie vote will enable Texas to enforce the new restrictions.
- A challenge by 26 states, including Georgia, against President Obama's execution action that gives more than 4 million undocumented immigrants a chance to remain in the U.S. without fear of deportation, even though they reside here illegally. Obama's plan would expand a program granting temporary deportation deferrals and work permits to immigrants who were illegally brought here as children. A deadlocked vote would be a victory for states challenging the program because lower courts have issued injunctions, placing it on hold.
In March, the high court gave organized labor a major victory with a 4-4 vote that let stand a federal appeals court ruling that allowed the unions to collect fees from non-members. During oral arguments, when Scalia was still on the bench, it looked as if the court was going to rule against the unions.
Georgia State University law professor Eric Segall, who closely follows the Supreme Court, predicted the court will not issue deadlocked opinions in the immigration and abortion cases.
“There might be parts in some of the decisions where there are 4-4 splits, but I don’t think that will be the case in the ultimate outcomes,” he said. “If the court was evenly divided on those cases, I think it would have already let us know that by now. Why wait until the end of the term?”
The fact that the high court now has eight justices who are largely split evenly along ideological grounds “may be a very good thing, not a bad thing,” Segall added. “I’m more comfortable than most people with hundreds of court of appeals judges all over the country having the last word. They’re a diverse group with varied backgrounds, and they didn’t all attend Harvard or Yale law schools. We don’t need the Supreme Court to decide all our problems.”
Washington lawyer Thomas Goldstein, who has argued extensively before the high court, has suggested it is possible the court will reschedule its high-profile cases to be argued again when a new justice is confirmed. Even though Scalia's replacement may not take the bench until sometime next year — well into the court's next term — there are precedents dating back decades in which the high court did exactly that, Goldstein wrote in his popular SCOTUSblog.
A tie vote could also occur in the appeal of former Virginia Gov. Bob McDonnell, who was convicted and faces prison time for providing benefits to a Richmond businessman and benefactor. A tie vote would let stand an appeals court ruling upholding McDonnell’s conviction. If the former governor’s conviction is overturned, it could make it more difficult for federal prosecutors to obtain public corruption convictions.
Another high-profile case still remaining to be decided is a challenge to an affirmative-action program at the University of Texas. But that case will not end in a 4-4 vote. Justice Elena Kagan recused herself from the case because she once dealt with it during her prior job as U.S. Solicitor General. This leaves seven justices to decide the issue.
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