When a Supreme Court tie produces more guidance, not less
© Greg Nash

There's been a lot of talk in the weeks following Justice Antonin Scalia's death about the downside of 4-4 decisions in the Supreme Court. A decision by an "equally divided Court" leads to the affirmation of the lower court decision under appeal. A tie thus resolves the actual issues for the parties in the case before the court. An affirmance by an equally divided court, however, has no precedential effect. The issues as to which the court is tied remain unresolved by the Supreme Court for everyone else — lower courts, lawyers and litigants alike — going forward.

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It is the latter point — lack of precedential effect — on which commentators have focused in questioning the viability of leaving the court with eight justices for any extended period of time. President Obama has also used the argument to urge the Senate to act on his own nominee, Merrick Garland, to become the ninth justice on the court. And, indeed, recent weeks have seen a tie vote on a contentious issue: In Friedrich v. California Teachers Association, the court evenly divided over, and thus let stand by default, the decision of the lower court in resolving whether states can require public-sector workers to pay the equivalent of union dues even if they choose not to join the union. True to the criticism levied against a court susceptible to tied outcomes, this issue will have to await a future term of the court for final resolution.

Missing from the debate, however, is recognition that a tie vote on one issue may sometimes actually generate more guidance on another issue. A case from last month is illustrative. Franchise Tax Board v. Hyatt involved a lawsuit brought in Nevada state court by a citizen of Nevada — and former citizen of California — against the California state tax collection agency, alleging that the California agency engaged in abusive audit and investigative practices in seeking to collect back taxes. The private citizen prevailed at trial, and a jury awarded him nearly $500 million in damages. California appealed, and the Nevada Supreme Court agreed to reduce the award; however, while acknowledging that a similar award against a Nevada agency would be capped at $50,000, the Nevada Supreme Court allowed damages of $1 million against the California agency to stand.

The Hyatt case brought two issues before the Court: (1) Whether the court should overrule its own prior precedent holding that a state court may entertain a lawsuit brought by a private citizen against another state without the other state's permission; and (2) Whether it is a violation of the Constitution's Full Faith and Credit Clause for a court in the first state to award to a private citizen suing an agency of the second state more damages than the state court would allow were the private citizen to have sued an agency of the first state. The court evenly divided over the first issue, and accordingly affirmed the court below (which had, not surprisingly, followed the Supreme Court's prior precedent and allowed the suit to proceed). Having affirmed the court below by an equally divided court on the first issue, the justices then still needed to turn to the second issue. Here, five justices formed a majority to hold that the state law that authorized the larger award against another state's agency was unconstitutional. (Justice Samuel Alito concurred in the judgment, while Chief Justice John Roberts and Justice Clarence Thomas dissented.)

On the first issue, the court's prior precedent remains good law; we will all have to wait for a future case to see if that precedent will be sustained or overruled. Note, however, that the existence of prior Supreme Court precedent on the first issue means that lower courts will not be adrift; the prior Supreme Court precedent is binding unless and until it is overruled by a future ruling of the Supreme Court.

On the second issue, however, we do have resolution. And note that it's a resolution that — under entirely plausible assumptions — we wouldn't have gotten with Scalia still on the bench. Given the court's current ideological cleavage, the odds are that the court divided 4-4 on the first issue with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan voting in favor of affirming the court's prior precedent, and Chief Justice Roberts and Justices Anthony Kennedy, Thomas and Alito voting to overrule it. And the odds are further that Scalia would have added his vote to the latter bloc. Thus, Scalia would have delivered the decisive vote, and the court would have overruled its prior precedent. But overruling the prior precedent would have ended the case and we would have gotten no guidance whatsoever on the second issue. Put another away, Scalia's absence resulted in the court providing guidance on the second issue — guidance that would probably never have come to light had Scalia been on the court.

Though the logic may be convoluted, the lesson is simple: The consequences of tie votes are unpredictable. They may deprive the public of guidance on important legal issues, but they may also result in the justices reaching issues they might not otherwise have reached.

Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.