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A series of 4-4 splits?

A scenario can now be foreseen, in the early part of the Supreme Court’s Term opening Oct. 3, that the Justices could split 4-4 in a number of significant cases. That is one of the early prospects after the death of Chief Justice William H. Rehnquist. The Court, however, might be expected to try to minimize those situations, perhaps by delaying final rulings on close cases until a ninth Justice joined their ranks. A 4-4 split is an unattractive prospect for the Court, since it sets no precedent and merely upholds, without comment, the lower court ruling being reviewed. In effect, it decides nothing of permanence about the legal issues at stake.

The scenario could result if the Senate approves Judge John G. Roberts, Jr., as a new member of the Court — either as Associate Justice, or as the new Chief Justice — and Justice Sandra Day O’Connor goes ahead with her plan to retire. (See the post below and later dicussion in this post on the possibility of Roberts being chosen as Chief Justice.) With a Court of eight members, very roughly divided 4-4 between a bloc of more conservative members and a block of more liberal members, a split on a deeply controversial case might indeed result. (Two such possibilities are apparent. One is the case involving the constitutional requirements for a parental notice requirement for teenagers seeking abortions — Planned Parenthood of Northern New England v. Ayotte, docket 04-1144. The other is a new test — and there are already three on the new Term’s docket — of the division of constitutional power between the national government and the states.)

If Roberts is as conservative as the White House hopes and liberal senators fear, he could be aligned with Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas on a number of major questions. On those same questions, the more liberal Justices might well be clearly on the other side; those four are Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Should there be a delay of several months in the process of filling the Court’s ninth seat, the Court could be confronted with serious questions about its ability to definitely resolve key cases. (It had just such difficulty most recently in a Term when then-Justice Louis F. Powell, Jr., was absent for several months due to illness; there were repeated 4-4 splits.)

This prospect would put a good deal of pressure on the Justices to try to find ways to decide really tough cases, perhaps by narrowing the issues, or finding at least a plurality so as to get a result, even if not the most satisfactory one. (One could make the argument that the Court last year decided the famous Pledge of Allegiance case only on a narrow jurisdictional point, in the face of a likely 4-4 split with Justice Scalia disqualified from the case.) Simply delaying a decision is an option, but not one that the Court would be likely to embrace very often. Because some of the Justices are more flexible than others in their views (for examples, Breyer and Kennedy), those individuals might be more determined to help craft a working plurality or majority even on the most controversial issues.

All of this raises significant questions about the role Sandra Day O’Connor might play in the near future. If Roberts is confirmed as her successor, the position for which he is currently the nominee, her retirement would take effect; she specified that condition on her plan to retire. She could opt to remain on the Court only if Roberts’ nomination to replace her is withdrawn, and President Bush resubmitted his name for the Chief Justiceship. O’Connor cares deeply about the Court as an institution, and might feel some strong pull to remain. At the same time, however, opting to stay might be seen by her as somewhat irregular, possibly even as implying a lack of confidence that the Court could find a way to function well without her.

Chief Justice Earl Warren remained on the Court a year longer than he had planned, but that was only because the Senate refused in 1968 to confirm a successor (Justice Abe Fortas). That is considerably different from the situation that has now arisen, where the Chief Justiceship itself is vacant.