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Material Harm to Our System of Justice


This Supreme Court Term marks the first Term in decades in which the Court will be without a full complement of nine Justices for almost half the Term. The eight Justices now on the Court have said little about the effects of the prolonged vacancy on the Court following the death of Justice Scalia in February, other than stating that their work will go forward and “[f]or the most part” would not change. In fact, the Court decides most of its cases with three or fewer dissenting votes, and work on such cases can proceed without disruption. In the years since World War II, however, an increasing number of important legal controversies have closely divided the Supreme Court and have been resolved by 5-4 rulings. When, as is currently the case, only eight Justices sit on the Court, it is possible for the Court to deadlock. Such 4-4 ties leave the lower court decision in place, but set no national precedent. Already since Justice Scalia’s death, as discussed below, two important legal controversies have resulted in 4-4 votes, and in one of those cases, the result is that different legal rules apply to different people and businesses in states literally right next to each other. 

This analysis reviews the harmful effects of the continuing vacancy on the Court, both in the current Term and the upcoming Term as well as in historical context.

Produced by Constitutional Accountability Center and People for the American Way Foundation.