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Has there ever been a tie vote on the US Supreme Court?

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In general, appellate courts, including the U.S. Supreme Court, are designed to avoid tie votes. Every appellate court in America, whether it be a state court or a federal court, is made up of an odd number of judges and/or justices. Moreover, before an en banc opinion from any appellate court takes on precedential value, a simple majority of the judges or justices seated on that court must vote for that opinion. Otherwise, the opinion is what is known as a plurality opinion.

With regard to the U.S. Supreme Court, plurality opinions are recorded and published so they do become part of jurisprudential history. Moreover, even though they do not technically provide hard precedential value, inferior courts often choose to follow the plurality opinion as if it were binding precedent.


Answer

Yes. There have been a number of US Supreme Court votes that resulted in a tie due to a justice's voluntary recusal or illness, or a vacancy on the bench. An article published in the March 22, 2005 issue of Journal of Appellate Practice and Process, "Recusals and the 'Problem' of an Equally Divided Supreme Court," cited a 57-Term study of decisions made following voluntary recusal of a justice. Of the 608 cases investigated, 49, or approximately 8.1%, ended in a 4-4 deadlock resolved by "Affirmance by an Equally Divided Court," leaving the decision of the lower appellate court standing without resolving the constitutional conflict.

While it is easier to find anecdotal accounts than specific case names, historical records indicate tie votes occur more often than most people realize.

For example, during the year that elapsed between Justice Abe Fortas' 1969 resignation and Justice Harry Blackmun's eventual appointment, the remaining eight justices deadlocked on twenty cases, all later reargued and resolved.

In 1985, when Justice Lewis F. Powell, Jr., missed 56 oral arguments due to illness, thirteen cases ended in 4-4 votes, defaulting to affirmance in eight cases and reargument of five before the full court.

More recently, the Rehnquist Court returned an affirmance by an equally divided court in Borden Ranch Partnership v. US Army Corps of Engineers, 537 US 99 (2002), an important challenge to the Clean Water Act. The Roberts Court achieved the same result in Warner-Lambert v. Kent, 552 US ___ (2008) when Chief Justice Roberts recused himself due to conflict of interest because he owned stock in Warner-Lambert's parent company, Pfizer.

The Supreme Court may exercise one of two options when unable to reach a majority opinion: 1) Affirmance by an equally divided court, which allows the decision of the lower court to stand in judgment without resolving the conflict; or 2) Reargument at a later date, preferably before the full court, which allows a final determination.

Affirmance, which carries no precedential weight, presents a thorny problem for the legal community in that it may leave Circuit splits (differing decisions between federal appellate courts on substantially similar issues) or important constitutional questions undefined for years. In most instances, these problems are eventually addressed when the Court grants certiorari on a later case that raises comparable questions.
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