What happens if theres a tie in the supreme court

Subscriber Account active since. As she did when the court last heard the challenge, Fisher v. Texas, Justice Elena Kagan will recuse herself from the case. That's because she worked on the case as the US' solicitor general from That leaves the Supreme Court with eight justices to hear and decide on the case this time around.

In , the court largely kicked the can down the road. By a decision, the high court agreed to send the case back to a lower court for it to rehear it with stricter scrutiny. But the Supreme Court taking up the case again suggests it may be ready to hand down a major decision on affirmative-action programs.

And that raises the specter of a decision divided along ideological lines at the court. So, what happens in the event of a tie?

The last time that happened was in , when the Supreme Court split over a copyright-infringement case involving Costco and a Swatch Group unit. Kagan also recused herself from that case for the same reason. Hyatt involved a lawsuit brought in Nevada state court by a citizen of Nevada — and former citizen of California — against the California state tax collection agency, alleging that the California agency engaged in abusive audit and investigative practices in seeking to collect back taxes.

The Hyatt case brought two issues before the Court: 1 Whether the court should overrule its own prior precedent holding that a state court may entertain a lawsuit brought by a private citizen against another state without the other state's permission; and 2 Whether it is a violation of the Constitution's Full Faith and Credit Clause for a court in the first state to award to a private citizen suing an agency of the second state more damages than the state court would allow were the private citizen to have sued an agency of the first state.

The court evenly divided over the first issue, and accordingly affirmed the court below which had, not surprisingly, followed the Supreme Court's prior precedent and allowed the suit to proceed.

Having affirmed the court below by an equally divided court on the first issue, the justices then still needed to turn to the second issue. Here, five justices formed a majority to hold that the state law that authorized the larger award against another state's agency was unconstitutional.

On the first issue, the court's prior precedent remains good law; we will all have to wait for a future case to see if that precedent will be sustained or overruled. Note, however, that the existence of prior Supreme Court precedent on the first issue means that lower courts will not be adrift; the prior Supreme Court precedent is binding unless and until it is overruled by a future ruling of the Supreme Court.

On the second issue, however, we do have resolution. And note that it's a resolution that — under entirely plausible assumptions — we wouldn't have gotten with Scalia still on the bench. Given the court's current ideological cleavage, the odds are that the court divided on the first issue with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan voting in favor of affirming the court's prior precedent, and Chief Justice Roberts and Justices Anthony Kennedy, Thomas and Alito voting to overrule it.

And the odds are further that Scalia would have added his vote to the latter bloc. Thus, Scalia would have delivered the decisive vote, and the court would have overruled its prior precedent. But overruling the prior precedent would have ended the case and we would have gotten no guidance whatsoever on the second issue.

After the Court is seated, the Chief Justice acknowledges counsel for the petitioner, who already is standing at the podium. The attorney then begins: "Mr. Chief Justice, and may it please the Court. Only the Chief Justice is addressed as Mr. Chief Justice. Justices, typically, ask questions throughout each presentation.

However, in courtroom or classroom simulations, to put student attorneys at ease, student Justices do not ask questions for the first two minutes of each side's argument. Before leaving the podium after making the initial presentation, counsel for the petitioner may reserve some time for rebuttal after the respondent's counsel has presented. The petitioner — not the Court — is responsible for keeping track of the time remaining for rebuttal.

In typical program simulations, more than one student attorney argues each side. In that instance, they should inform the student Marshal before the court session begins how they wish to divide their time. Usually, the first student attorney to speak also handles the rebuttal. When oral arguments are concluded, the Justices have to decide the case. They do so at what is known as the Justices' Conference. When Court is in session, there are two conferences scheduled per week — one on Wednesday afternoon and one on Friday afternoon.

At their Wednesday conference, the Justices talk about the cases heard on Monday. At their Friday conference, they discuss cases heard on Tuesday and Wednesday. When Court is not in session, no Wednesday conference is held. Before going into the Conference, the Justices frequently discuss the relevant cases with their law clerks, seeking to get different perspectives on the case. At the end of these sessions, sometimes the Justices have a fairly good idea of how they will vote in the case; other times, they are still uncommitted.

According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc. The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week's petitions for certiorari , i.

After the petitions for certiorari are dealt with, the Justices begin to discuss the cases that were heard since their last Conference. According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have. Each Justice speaks without interruptions from the others. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority, ending with the most junior justice—the one who has served on the court for the fewest years.

When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote.

After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court.

The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion. If a Justice agrees with the outcome of the case, but not the majority's rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion. When there is a tie vote, the decision of the lower Court stands. This can happen if, for some reason, any of the nine Justices is not participating in a case e.

With the exception of this deadline, there are no rules concerning when decisions must be released.