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Constitution Check: If the Supreme Court splits 4-to-4, does anybody win?

March 30, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at how the Supreme Court is close to powerless when it takes on a case that then fizzles in a 4-to-4 split.


The facade of the United States Supreme Court building in Washington, D.C.
The facade of the United States Supreme Court building in Washington, D.C.

“The judgment is affirmed by an equally divided Court.”

 – This one sentence makes up the entire, unexplained decision by the Supreme Court on Tuesday, announcing that the eight Justices could not assemble a majority to decide a highly important question over labor union fees that non-member workers oppose for political reasons.  The case was Friedrichs v. California Teachers Association.

“We believe this case is too important to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.”

 – Excerpt from a news release on Tuesday from Terry Pell, president of the Center for Individual Rights, a conservative advocacy group that filed the Friedrichs case for nine public school teachers in California who oppose paying any “agency fees” to the teachers’ union that represents them along with teachers who are members.

“Today’s decision sends a strong message to our opponents that the Supreme Court is not open to do the business of right-wing organizations seeking to win through judicial decree what they have been unable to win through the democratic process….This case provides a vivid illustration of what is at stake when it comes to the Supreme Court.”

 – Excerpt from a news release on Tuesday from America Works Together, an advocacy group that supports labor unions’ right to assess fees from non-member workers whom they represent in bargaining over working conditions.


America’s basic governing document gives quite a good deal of guidance on the work of the Supreme Court that it created under Article III, but it says not a word about what the court should do when it has an even number of Justices and they split evenly in a case.  No matter how important the issues in such a case may be, such an even division results in something that is quite close to no decision at all.

In other words, such a split “decision” sets no precedent, and America must wait for an answer to questions raised in such cases, until another appeal reaches the Justices and gets reviewed, or the Justices decide – under a difficult and rare process – to reconsider.  It may come as a considerable surprise to many across the nation that, with all of its power, the highest tribunal is close to powerless when it takes on a case that then fizzles in a 4-to-4 split.  Among the Justices, such a split is usually quite disappointing, because it leaves unanswered a question or questions that the court and the lawyers had committed to resolving, then couldn’t.

With the death of Justice Antonin Scalia in February, the Supreme Court has only eight members.  That is enough to do its business in general, since federal law only requires that there be six Justices in order to form a quorum capable of deciding.   But the business does not get done, in a real sense, when a majority does not form among eight Justices.  That is a prospect that the court now seems likely to face in perhaps several major cases, until at least late this year, after the elections, and perhaps well into 2017, because of partisan gridlock in the Senate over President Obama’s authority to choose a replacement for Justice Scalia.

Tuesday’s 4-to-4 split in the California teachers’ union case is a near-perfect illustration of what a split outcome means.  For several years, the court has been pondering the situation in the workplace when a union represents all of the workers, including some on the payroll who choose not to join as members, and seeks to collect dues or fees to pay its expenses as the entire payroll’s bargaining agent.  For non-members, that involves so-called “agency fees.”

Along the way, the court has ruled that unions may not assess such fees from non-members to pay the costs of unions’ lobbying or direct political action, if that activity offends the non-member workers’ personal views.  But, when the union represents government workers – teachers, police, or firefighters, for example – some non-members consider that everything that the union does to shape conditions in the workplace has a political aspect to it, because it affects government budgets and citizen taxes.

Even so, non-members have had to pay those fees for decades, because the Supreme Court had ruled in 1977, in the case of Abood v. Detroit Board of Education, that it does not violate non-members public employees’ First Amendment rights when the fees they are required to pay only cover the costs of bargaining, not union political or legislative activity.

Lawyers and advocacy groups representing non-union public employees have been hoping for years to get the Abood case overruled.  Most recently, they put together a test case involving nine public school teachers in California.   Lower federal courts handling the case had no choice but to uphold the agency fees, since those courts were duty-bound to apply the Abood precedent.

So, as the lawsuit’s sponsors intended, the case ultimately went to the Supreme Court to see if hints given by some of the Justices meant that, at last, the Abood precedent would fall.  It looked as if that might happen, at the time the nine Justices heard the case in mid-January.  Since Justice Scalia’s death in February, the court has labored on with the case, perhaps looking for a way to decide it rather than split 4-to-4.  On Tuesday, the court essentially gave up.

Technically, an even split means just one thing: the lower court decision being reviewed is upheld, but there is no explanation, the result does not set a precedent on the issues involved, and the outcome binds only the two sides to obey what the lower court had concluded.

It is simply a mistake to read into such a split anything other than that eight jurists could not find common ground on it, after thorough study.  The public knows that four thought the lower court was right, and that four others thought it was wrong.  There is no winner in the Supreme Court, but the side that won in the lower court gets its victory there validated but actually not technically endorsed by the Justices

The Supreme Court’s rules, though, do allow for a request that the divided court take another look, to see if, with another try, it might agree on something that a majority could accept.

After the court had worked without success on the first try to put together a majority, a rehearing would be unusual, and, in fact, it rarely happens.

But there are other complications.  It takes the votes of five members of the court to agree to rehear a case, even one that resulted in a 4-to-4 decision.  And the rules specify that no reconsideration will take place unless one of those who supported the decision agrees, essentially, to switch sides.  Who would that be on a divided eight-Justice court?  Moreover, by custom, a new member of the court does not get to vote on rehearing a prior case.  What then?

Another question, too, arises: Is the Senate taking notice that the court of eight sometimes can’t do its job fully?

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