The Wall Street Journal published an editorial by Ilya Shapiro and me analyzing all of the instances since World War II where an eight-person Court either (a) scheduled a case for reargument or (b) affirmed by a 4-4 margin. In this post, I listed all of the cases we identified. Here is the introduction:
Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.
Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.
In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.
And the conclusion:
This history shows that today’s court is more than capable of doing its work with eight justices. By far the majority of cases the Roberts court decides aren’t closely contested. Last term only 19 of the 74 decided cases went 5-4. Of those, Justice Scalia was in the majority only six times. Yet regardless of what happens in any particular case, Justice Scalia’s absence—while a huge loss for the nation—hardly hampers the functioning of the Supreme Court even if his seat remains vacant until after the election.
I would note that the title provided by the WSJ was not ours.
In the coming weeks, we will have a more detailed analysis of the specific cases where Justice Scalia was likely to be the 5th vote.