Tuesday, December 14, 2010

A Tie Vote in the Supreme Court

    When Elena Kagan was nominated for the United States Supreme Court some opposed the nomination on the grounds that as a Justice she would be required to recuse herself from all the cases with which she had contact while serving as Solicitor General of the United States. This could lead, it was argued, to 4-4 ties in some of these cases. 
    At the time, and now, I considered such opposition as simply conservatives looking for some ground to oppose a liberal nominee. The other eight justices will not grant the writ of certiorari in most of the cases with which she may have contact as Solicitor General, and within a reasonable period of time there will simply be fewer and fewer cases reaching the Court with which she had any contact during her tenure as Solicitor General.
    When there is a tie vote in the Supreme Court the Court simply announces that the Court is evenly divided and affirms the lower court decision which is under review. The decision has no precedential value; the affirmance is issued to afford finality for the litigants in that particular case. 
    Yesterday in Costco Wholesale Corp. v. Omega, S.A., a copyright case, Justice Kagan did recuse herself and an evenly divided Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit. As is usual in such cases the brief Per Curiam opinion does not identify which Justices were on which side of the 4-4 tie. The copyright and patent bar will undoubtedly be rife with speculation over how each Justice voted. The opinion can be found here
    While Justice Kagan has recused herself from other cases the Court has already heard this Term, the possibility of a rare tie vote is hardly grounds to deny a nominee a seat on the high court.

The New York Court of Appeals: the Court of Appeals released opinions in six cases today, all criminal cases. The cases address either the constitutionality of New York's procedure for determining whether a defendant is a persistent felony offender, or whether in a particular instance multiple sentences must run concurrently with each other or consecutively to each other. Taken together the six cases contain an almost dizzying lineup of judges on different sides of the issue. The cases can be found here.

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