TIME Supreme Court

This Is What Happens When the Supreme Court Is Tied

WASHINGTON, DC - FEBRUARY 13: The American flag flies at half mast at the U.S. Supreme Court February 13, 2016 in Washington, DC. Supreme Court Justice Antonin Scalia was at a Texas Ranch Saturday morning when he died at the age of 79. (Photo by Drew Angerer/Getty Images)
Drew Angerer—Getty Images The American flag flies at half mast after the death of Supreme Court Justice Antonin Scalia at the U.S. Supreme Court in Washington on Feb.13, 2016.

Without Scalia, the court may be tied 4-4 on some cases

The death of Justice Antonin Scalia at age 79 raises a lot of questions, including how decisions of the U.S. Supreme Court go forward as the process to nominate his successor begins. Without nine justices, there is the potential for a 4-4 tie.

Supreme Court ties aren’t unprecedented; justices have recused themselves from the bench for various reasons throughout history. When it happens, the lower court ruling stands and no precedent is set.

In the paper “Ties in the Supreme Court of the United States,” published in the William & Mary Law Review, Edward Hartnett writes:

The traditional practice of the Supreme Court of the United States is that “no affirmative action can be had in a cause where the judges are equally divided in opinion as to the judgment to be rendered or order to be made. Although equal divisions on today’s nine-member Court result from recusals, absences, or vacancies, such equal divisions can result on a full bench if Congress sets the size of the Supreme Court at an even number, as it did from 1789 until 1807, and from 1863 until 1866.

TIME’s Massimo Calabresi has explained how the conservative justice’s death will impact the court’s pending cases.

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