I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be “affirmed by an equally divided Court.” I now believe that is wrong. There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.
Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia. It could be as long as a year from now – well into the Court’s next Term. But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess. Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.
The most on-point precedent involves Justice Robert Jackson, who died suddenly of a heart attack at the very beginning of the Court’s 1954 Term (on October 9, 1954). Jackson’s replacement, John Marshall Harlan II, was confirmed later that Term (on March 17, 1955). So for cases argued in the 1954 Term before March 17, there is a direct parallel to the present circumstances. The Court had only eight Justices, due to the death of a member of the Court.
I located three cases in which the Court heard reargument after Harlan joined the Court: Indian Towing Co. v. United States (decided five to four); United States ex rel. Toth v. Quarles (decided six to three); and Ellis v. Dixon (decided five to four). Interestingly, in Indian Towing (which is an important ruling), the Court initially affirmed by an equally divided Court (on April 11, 1955, after Harlan had joined the Court) but then granted rehearing and heard reargument. I do not know why that procedure was followed.
There is one counter-example from the same Term: Ryan Stevedoring v. Pan-Atlantic S.S. Corp. It was argued just before Harlan joined the Court (on March 3-4, 1955) and then was affirmed by an equally divided Court after he joined (on April 11, 1955). It was not set down for reargument.
I do not have access to the papers in the cases, so I cannot explain why they were treated differently. But Ryan Stevedoring looks to be an outlier. It could be the Justices decided that the case, which involved indemnity under admiralty law, simply was not worth the time to reargue.
There are other examples that point in the direction of holding reargument. There does not seem to be any reason that the Court would treat vacancies due to death differently from vacancies due to other reasons, when a new Justice arrives at the Court in the middle of the Term. There have been recent examples of that.
Justice Thomas joined the Court on October 23, 1991. The Court heard reargument in two cases in which he missed the initial argument: Cippollone v. Liggett Group (decided by a fractured vote, depending on the issue); and Doggett v. United States (decided five to four, although interestingly with Thomas in dissent).
Justice Kennedy joined the Court on February 18, 1988. The Court heard reargument in four cases in which he missed the initial argument: Boyle v. United Technologies Corp. (decided five to four); K Mart Corp. v. Cartier (decided by a fractured vote, depending on the issue); Liljeberg v. Health Services Acquisition Corp. (decided five to four); and Ross v. Oklahoma (decided five to four).
The practice of holding reargument is important for three kinds of cases that are now pending. First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court. It could well lose if Justice Scalia is succeeded by another conservative. Second, in cases in which the liberal side lost below and would have lost through an affirmance by an equally divided Court (perhaps the government in the immigration case), it will have the opportunity to proceed before a full Court when a new appointment is made. Third, in the contraception mandate case, in which an affirmance by an equally divided Court could have led to confusion because the lower court opinions were divided, there is a greater prospect that the Supreme Court will produce a single, clear decision.