As part of our research for our WSJ editorial, Ilya Shapiro and I (with the assistance of Randal Meyer and Anthony Gruzdis) compiled a list of all of the instances where the Court was at less than eight justices due to death or sudden resignation, and scheduled a case for reargument.
| Reheard cases | Original Argument dates | Rehearing Date | Date Decided | Outcome of Reargued Case |
| 11/20/1945-9/30/1946: Jackson at Nuremberg | ||||
| United Public Workers v. Mitchell | 12/3/1945 | 10/17/1946 | 2/10/1947 | 4-to-3 |
| Adamson v. California | 1/15/1946 | 1/16/1947 | 6/23/1947 | 5-to-4 |
| American Power & Light Co. v. Securities and Exchange Commission | 11/16/1945 | 10/14/1946 | 11/25/1946 | 6-to-0 |
| 7/19/1949-8/24/1949 Murphy died; Clark succeeded | ||||
| Engineers Pub. Serv. Co. v. SEC/ SEC v. Engineers Pub. Serv. Co. | 11/15/1945 | – | per curiam | |
| Freeman v. Hewitt | 11/8/1944 | 10/14/1946 | 12/16/1946 | 6-to-3 |
| 9/10/1949-10/12/1949 Rutledge died; Minton succeeded | No Holds- 1 month vacancy, no overlap with Murphy | |||
| 7/19/1949-8/24/1949 Murphy died; Clark succeeded | No Holds- 1 month vacancy, no overlap with Rutledge | |||
| 9/8/1953-10/5/1953 Vinson died; Warren succeeded | ||||
| Brown v. Board of Educ. (I) | 12/9/1952 | 12/9/1953 | 5/17/1954 | per curiam |
| Bolling v. Sharpe | 12/11/1952 | 12/9/1953 | 5/17/1954 | per curiam |
| 10/9/1954-3/17/1955 Jackson Died; Harlan succeeded | ||||
| United States ex rel. Toth v. Quarles | 2/9/1955 | 10/13/1955 | 11/7/1955 | 6-to-3 |
| Indian Towing Co. v. United States | 2/10/1955 | 10/13/1955 | 11/21/1955 | 5-to-4 |
| Ellis v. Dixon | 10/18/1954 | 4/20/1955 | 6/6/1955 | 5-to-4 |
| 02/25/1957-3/25/1957 Reed resigned; Whittaker succeeded | No Holds- 1 month vacancy | |||
| 8/28/1962-10/1/1962 Frankfurter resigned; Goldberg succeeded (FF had a stroke on 4/2/1962) | ||||
| Wong Sun v. United States | 3/29/1962 | 10/8/1962 | 1/14/1963 | 5-to-4 |
| Douglas v. California | 4/17/1962 | 1/16/1963 | 3/18/1963 | 6-to-3 |
| Yellin v. United States | 4/18/1962 | 12/6/1962 | 6/17/1963 | 5-to-4 |
| 7/25/1965-10/4/1965 Goldberg resigned; Fortas succeeded | End of Term Vacancy; no relevant holds recorded in Oct 64-June 65. | |||
| 6/12/1967-10/2/1967 Clark resigned; Marshall succeeded | End of Term Vacancy; no relevant holds recorded in Oct 66-June 67. | |||
| 5/14/1969-6/9/1970 Fortas resigned; vacant until Blackmun | ||||
| Boyle v. Landry | 3/24/1969 | 11/16/1970 | 2/23/1971 | 8-to-1 |
| Nacirema Operating Company, Inc. v.Johnson | 3/25/1969 | 10/20/1969 | 12/9/1969 | 5-to-3 |
| Gunn v. University Comm. to End the War in Vietnam | 1/13/1969 | 4/29/1970 | 6/29/1970 | per curiam |
| Maxwell v. Bishop | 3/4/1969 | 5/4/1970 | 6/1/1970 | per curiam |
| Dutton v. Evans | 10/15/1969 | 10/15/1970 | 12/15/1970 | 5-to-4 |
| Bodie v. Connecticut | 12/8/1969 | 11/17/1970 | 3/2/1971 | 8-to-1 |
| Hill v. California | 1/19/1970 | 10/21/1970 | 4/5/1971 | 6-to-2 |
| United States v. United States Coin & Currency | 2/25/1969 | 10/20/1970 | 4/5/1971 | 5-to-4 |
| Younger v. Harris | 4/1/1969 | 11/16/1970 | 2/23/1971 | 8-to-1 |
| Samuels v. Mackell | 4/1/1969 | 11/16/1970 | 2/23/1971 | per curiam |
| United States v. White | 11/10/1969 | 10/20/1970 | 4/5/1971 | 5-to-4 |
| North Carolina v. Alford | 11/17/1969 | 10/14/1970 | 11/23/1970 | 6-to-3 |
| Baird v. State Bar of Az. | 12/8/1969 | 10/14/1970 | 2/23/1971 | 5-to-4 |
| Sanks v. Georgia | 12/8/1969 | 11/17/1970 | 2/23/1971 | per curiam |
| In re Stolar | 12/9/1969 | 10/14/1970 | 2/23/1971 | 5-to-4 |
| United States v. Jorn | 1/12/1970 | 10/22/1970 | 1/25/1971 | 6-to-3 |
| Roges v. Bellei | 1/15/1970 | 11/12/1970 | 4/5/1971 | 5-to-4 |
| Dyson v. Stein | 4/30/1970 | 11/16/1970 | 2/23/1971 | per curiam |
| 9/17/1971-1/7/1972 Black resigned 9/17/71. Filled by Powell 1/7/72. Harlan died 9/23/71. Filled by WHR 1/7/72. Between 9/71 and 1/72, down to 7 Justices | ||||
| Johnson v. Louisiana | 3/1/1971 | 1/10/1972 | 5/22/1972 | 5-to-4 |
| Apodaca v. Oregon | 3/1/1971 | 1/10/1972 | 5/22/1972 | 5-to-4 |
| United States v. Brewster | 10/18/1971 | 3/20/1972 | 6/29/1972 | 6-to-3 |
| S&E Contractors Inc. v. United States | 10/21/1971 | 3/20/1972 | 4/24/1972 | 5-to-3 |
| Kirby v. Illinois | 11/11/1971 | 3/20/1972 | 6/7/1972 | 5-to-4 |
| Argersinger v. Hamlin | 12/6/1971 | 2/28/1972 | 6/12/1972 | per curiam |
| Roe v. Wade/Doe v. Bolton | 12/13/1971 | 10/11/1972 | 1/22/1973 | 7-to-2 |
| 11/12/1975-12/19/1975 Douglas resigned 11/12/75; Stevens succeeded 12/19/75. (Douglas had a stroke 12/31/1974. The Court held over 4-4 cases.) | ||||
| Hampton v. Mow Sun Wong | 1/13/1975 | 1/12/1976 | 6/1/1976 | 5-to-4 |
| Middendorf v. Henry/ Henry v. Middendorf | 1/22/1975 | 11/5/1975 | 3/24/1976 | 5-to-3 |
| Beer v. United States | 3/26/1975 | 11/12/1975 | 3/30/1976 | 5-to-3 |
| National League of Cities v. Usery/ California v. Usery | 4/16/1975 | 3/2/1976 | 6/24/1976 | 5-to-4 |
| Laing v. United States/ United States v. Hall | 1/21/1975 | 10/15/1975 | 1/23/1976 | 5-to-4 |
| 7/3/1981-9/25/1981 Stewart resigned 7/3/81; O’Connor succeeded 9/25/81 | No holdovers | |||
| 6/26/1987-2/18/1988 Powell resigned; Kennedy succeeded (Court operating at 8 Justices) | ||||
| Boyle v. United Technologies Corp. | 10/13/1987 | 4/27/1988 | 6/27/1988 | 5-to-4 |
| K Mart Corp. v. Cartier | 10/6/1987 | 4/26/1988 | 5/31/1988 | 5-to-4 |
| Liiljeberg v. Health Services Acquisition Corp. | 12/9/1987 | 4/25/1988 | 6/17/1988 | 5-to-4 |
| Ross v. Oklahoma | 1/19/1988 | 4/18/1988 | 6/22/1988 | 5-to-4 |
| 7/20/1990-10/9/1990 Brennan resigned; Souter succeeded | No Holds- Out of term vacancy, no rearugments 89-90 | |||
| 6/27/1991-10/23/1991 Marshall resigned; Thomas succeeded | ||||
| Doggett v. United States | 10/9/1991 | 2/24/1992 | 6/24/1992 | 5-to-4 |
| Cipollone v. Liggett Group, Inc. | 10/8/1991 | 1/13/1992 | 6/24/1992 | 7-to-2 |
| Bray v. Alexandria Women’s Health Clinic | 10/16/1991 | 10/6/1992 | 1/13/1993 | 6-to-3 |
| 11/2/2005-1/31/2006 Rehnquist died 9/3/05. Robets succeeded 9/29/05. O’Connor stepped down 1/31/06. Alito succeed 1/31/06. | ||||
| Kansas v. Marsh | 12/7/2005 | 4/25/2006 | 6/26/2006 | 5-to-4 |
| Hudson v. Michigan | 1/9/2006 | 5/18/2006 | 6/15/2006 | 5-to-4 |
| Garcetti v. Ceballos | 10/12/2005 | 3/21/2006 | 6/30/2006 | 5-to-4 |
We deliberately excluded several cases that didn’t quite fit into the rubric, including a few that were scheduled for reargument, but never actually reargued. If we are missing any–or included one that shouldn’t be included–please drop me a line.
In addition, we also isolated the cases that split 4-4 during these short-handed periods:
| Case Name |
| 11/20/1945-9/30/1946: Jackson at Nuremberg |
| Haliburton Oil Well Cementing Co. v. Walker |
| Bruce’s Juices, Inc. v American Can Co |
| Alpine MacGregor v. Westinghouse Electric & Manu’f Co. |
| U.S. v. Pullman Co. |
| Otis & Co. v. United States |
| Chesapeake & Ohio RR Co. v. United States |
| Will Giese v. United States |
| PG&E v. United States |
| 7/19/1949-8/24/1949 Murphy died; Clark succeeded |
| Brownell v. Rubenstein |
| 02/25/1957-3/25/1957 Reed resigned; Whittaker succeeded |
| U.S. v. American Freight Co |
| 5/14/1969-6/9/1970 Fortas resigned; vacant until Blackmun |
| Dewey v. Reynolds Metals Co. |
| Radich v. New York |
| Decker v. Harper & Row Publishers |
| Atlantic City Electric Co. v. United States/ Alabama Power Co. et al. v. United States et al. |
| In re Spencer |
| Standard Indus., Inc. v. Tigrett Indus., Inc. |
| Grove Press v. Maryland State Board of Censors |
| Dewey v. Reynolds Metals Co. |
| 9/17/1971-1/7/1972 Black resigned 9/17/71. Filled by Powell 1/7/72. Harlan died 9/23/71. Filled by WHR 1/7/72. Between 9/71 and 1/72, down to 7 Justices |
| Walter Fleischer Co. v. County of LA |
| Diamond v. Bradley |
| Staats v. Bristol Laboratories Div. of Bristol-Myers Co. |
| United States v. Chas. Pfizer & Co., Inc. |
| 6/26/1987-2/18/1988 Powell resigned; Kennedy succeeded (Court operating at 8 Justices) |
| Reagan v. Abourezk |
| Hartigan v. Zbaraz |
| Trans World Airlines, Inc. v. Flight Attendants |