What we can learn from the Supreme Court's tie vote on immigration plan
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For months, speculation has run rampant on how the Supreme Court would resolve the case — United States v. Texas — raising challenges to the Obama administration's use of administrative action to shield certain classes of immigrants from deportation. The lower federal courts recognized the standing of numerous states to file the action, and granted a preliminary injunction that enjoins the administration from implementing its immigration reforms. The Supreme Court has finally revealed its disposition in a somewhat anticlimactic one-sentence per curiam opinion: "The judgment is affirmed by an equally divided Court." This tie vote affirms the judgment of the last court below — i.e., in this case it affirms the preliminary injunction — but otherwise lacks precedential value. For these reasons, commentators have (1) described the outcome as a loss for the administration, but also (2) noted that the lack of precedential effect leaves the slate clean for a future challenge to the program to succeed or fail (insofar as the lower court decision remains law-of-the-case only for purposes of the preliminary injunction now in effect, and the application of the injunction beyond the Fifth Circuit remains uncertain). In fact, however, in spite of its paucity, we can discern some additional points from the decision. With considerable certainty, we can reason that the court split on both states' standing to file suit (a procedural issue) and also on the merits (the substantive issues). The breadth of this divide highlights the importance the identity of the person who will join the court as its ninth justice, and presumably break ties like these.


First, the court very likely divided 4-4 on the question of standing. How can we know this? If a majority of the eight active justices had thought that the states lacked standing to bring the action in the first place, then that majority of justices would have voted to vacate the judgment below and remand for dismissal on the ground of absence of standing. (That would be true even if the justices were equally divided on the merits of the case.) In that case, the court would have issued a majority opinion to that effect. But we did not get such an opinion.

Along similar lines, if a majority of justices thought that standing was proper but then the justices divided equally on the merits, one would have expected an opinion that announced (1) a majority holding that there was standing, and (2) a resolution on the merits as affirmed by an equally divided court. The court does not ordinarily hesitate to issue opinions that decide some issues by a majority even while other issues fall undecided due to a tie vote. (Indeed, the court did this earlier this very term in Franchise Tax Board of California v. Hyatt.) But, again, we did not get such an opinion. It is eminently reasonable to conclude, then, that the court divided evenly on the question of standing.

Second, the court very likely divided 4-4 on the merits of the case as well. How can we know this? Once we conclude that the court divided evenly on the standing question, it is logical to expect that, had there not been a tie among the justices on the merits, we would have seen an opinion that affirmed the opinion below by an equally divided court on the standing question — i.e., that affirmed the standing of the states to sue — and then revealed the majority disposition of the merits. But we did not see such an opinion.

It's remotely possible that the justices divided equally on the question of standing, but then that a majority of justices (perhaps all the justices, including those who voted against standing) united on the merits, but that (adhering to the traditional notion that judges should cast votes based on case outcomes rather than on an issue-by-issue basis) the court would still report an even divide with four justices voting to remand the case with instructions to dismiss for lack of standing and four justices voting to affirm (or reverse) the injunction on the merits. This, however, is unlikely. Quite apart from the politics of the justices (which is consistent with a split on both standing and the merits), the usual practice in such settings is for at least one justice who voted to dismiss for lack of standing to vote nevertheless on the merits in order to generate a majority opinion.

Was the divide among the justices the same for both the standing question and the merits? Of that, we can't be sure. It certainly makes sense, given the view of some that judges manipulate the standing inquiry to achieve goals they would like to achieve on the merits. That said, the judges in the conservative bloc, with exception of Justice Anthony Kennedy, have previously expressed doubt about the scope of state standing to sue the federal government. And Justice Sonia Sotomayor has written opinions endorsing broader conceptions of standing. Perhaps, then, Sotomayor would have found standing but ruled for the Obama administration on the merits, while one of the more conservative justices would not have found standing, but confronted with the merits, would have ruled against the administration.

What's the upshot of all this? United States v. Texas highlights how the division among the current justices extends to issues of both procedure and substance. The ninth justice will break these ties. This confirms that the appointment of the next justice will have far-reaching ramifications, both for the issues in this case and for other issues as well.

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.