SUPREME STALEMATES: CHALICES, JACK-O'-LANTERNS, AND OTHER STATE HIGH COURT TIEBREAKERS.

• Date: 01 January 2021
• Author: Willett, R.

INTRODUCTION 443 I. THE TROUBLE WITH DEADLOCK 449 II. STAVING OFF STALEMATE: IMPASSE RESOLUTION IN COURTS OF LAST RESORT 454 A. Ties That Bind: SCOTUS and Seventeen Like-Minded States 454 1. SCOTUS is Statutorily and Structurally Tied to Ties 454 a. Recusal Rules Make SCOTUS Uniquely Vulnerable to Ties 455 b. At Least Partly to Avoid Ties, Supreme Court Recusal is Uniquely Disfavored 461 c. Plenty Have Proposed Solutions to SCOTUS Ties 464 2. Survey Says: Seventeen States SCOTUS's "Ties Happen" Approach 467 B. Varying Procedures of Varying Prudence: Avoiding and Breaking Legal Logjams in State High Courts 474 1. Roughly Three-Fourths of Anti-stalemate Courts Appoint Fill-in Justices on the Front End, Aiming to Avoid Deadlock in the First Place 479 2. Roughly Two-Thirds of Anti-Stalemate States Rely on the Chief Justice to Select Substitute Justices 486 a. Twenty-Three Courts Refy on the Chief Justice 486 i. In Some States, the Chief Justice Selects Neutrally or Randomly 486 ii. In Other States, the Chief Justice Selects Non-randomly 490 b. Four Courts Rely on the Governor 493 c. Seven Courts Rely on Court Administration 498 III. You CAN'T PLEASE EVERYBODY: DRAWBACKS TO STATES' DIVERGENT TIEBREAKING APPROACHES 501 A. Angst When There Is No Tiebreaker-- Pennsylvania and Wisconsin 501 B. Angst When a Former Member Is the Tiebreaker--Maryland 502 C. Angst When the Chief Justice Picks the Tiebreaker--New Jersey and California 502 D. Angst When the Governor Picks the Tiebreaker (and Knows Which Case is Tied)--Texas 506 IV. PROPOSALS FOR REFORM IN TEXAS (AND BEYOND?) 513 A. Classic Coke: Judicial Independence and the Rule of Law 513 B. Possible Paths for Texas 515 1. Baby Steps: Tweak the Governor's Role 516 2. Swing for the Fences: Scrap the Governor's Role 516 CONCLUSION 519 APPENDICES 521 Appendix A--Summary Chart of State Approaches 521 Appendix B--Texas's Temporary- Justice Process 532 1. Non-strategic Selection--A Generic Focus on "Capable Qualified Jurists"; "We Didn't Try to Tip the Scales in a Big Way." 532 a. Governor Bill Clements (1979 --1983 and 1987-1991): One Appointee in One Case 532 b. Governor George W. Bush (1995-2000): Seven Appointees in Four Cases 533 c. Governor Rick Perry (2000-2015): Sixteen Appointees in Nine Case 534 2. Strategic Selection--A Targeted Focus on the Issues Raised and Who Might Lean a Preferred Direction; "The Judicial Version of a Fantasy Football Draft": Governor Greg Abbott (2015-present) 536 INTRODUCTION

I was in Atlanta for a symposium on Supreme Court transparency when the shocking news arrived in a terse Twitter direct message: "Scalia dead." For a generation of legal conservatives, the February 2016 death of Justice Antonin Scalia was a devastating philosophical loss. A towering intellectual figure, Justice Scalia was the undisputed godfather of the Court's conservative invigoration. His passing portended a seismic, once-in-a-generation altering of the High Court's ideological balance.

The impact was not just philosophical, but practical. Justice Scalia's seat remained empty for 422 days, the longest-ever opening on the nine-member Court. The Nation's capital was consumed with fractious DEFCON-1 rancor, amplified by the impending presidential election, and Justice Scalia's successor had to await President Obama's successor. (1)

Political stalemate in turn yielded judicial stalemate. Because SCOTUS has no tiebreaking mechanism, divisive cases either lock up 4-4 (thus affirming the lower court), linger until a new justice arrives, or resolve in ways that duck the more nettlesome issues. Here, a single indefinite vacancy left the Court evenly divided in several cases, producing 4-4 nondecisions that resolved nothing. (2)

Fast forward to 2020, when the passing of another legal giant, Justice Ruth Bader Ginsburg, sparked an even fiercer confirmation fracas. For the second presidential election in a row, the Court instantly became a major campaign issue. This time, the stakes were even higher (the prospect of a 6-3 conservative supermajority), and the election even nearer (just forty-six days away). Leading Democrats openly spoke of "packing" the Supreme Court (expanding its size for the first time since 1869) if they captured the White House and Senate. (3)

But put aside Court packing--adding seats in hopes of influencing the Court's decisions. What about Court hacking? Not addition but infiltration. What if a politician could singlehandedly engineer the outcome of a case? Specifically, what if the President could name a fill-in justice to cast a tiebreaking vote in a single case? Imagine if President Obama (while the "Scalia seat" sat unfilled) or President Trump (had the "Ginsburg seat" remained unfilled) had possessed the extraordinary power to appoint a substitute justice to break 4-4 deadlocks. (4) How would that strike our finicky Framers, who preferred to divide power rather than concentrate it? Such singular clout seems unthinkable. One might hope, however naively, that a President would nobly refuse to game the system by naming a "sure thing" temporary justice. But could any flesh-and-blood politician, if given such an extraordinary prerogative, withstand the lure of putting a finger (or an anvil) on the scale, deciding the case by deciding who will decide the case?

Consider this Mother of All Hypothetical : Bush v. Gore, with President Clinton (a Democrat) selecting a tiebreaking justice to decide whether George W. Bush (the Republican candidate) or Al Gore (his own vice president) will succeed him. Or recall Spring 2012 when the Court was first weighing the constitutional fate of President Obama's signature domestic achievement, the Affordable Care Act. (5) Assume that Justice Elena Kagan, who was Solicitor General when the ACA was debated and passed and whose office was involved in litigation strategy, had recused herself. (6) Presumably, the High Court would've deadlocked 4-4. Under a President-picks tiebreaker system, President Obama would've had the astonishing power to choose who decided whether the cornerstone of his presidential legacy lived or died.

These hypotheticals may seem outlandish or otherworldly. But that's precisely the system used in my home state of Texas. What sounds hysterical for SCOTUS is historical for SCOTX. When the Supreme Court of Texas locks up 4-4, the Governor alone chooses a temporary, one-case-only tiebreaking justice. (7) More remarkable, the Governor knows not just that a case is tied, but which case is tied. As a constitutional matter, the Governorship of Texas is relatively weak. (8) But this perk is unparalleled. No other Governor in America boasts such unilateral power--carte blanche license to, essentially, decide an identifiable supreme court case by handpicking the tiebreaking vote. (9)

In Washington, D.C., things operate differently. The United States Supreme Court is famously tiebreaker-free. As the Court put it a century and a half ago: "No affirmative action can be had in a cause where the judges are equally divided in opinion as to the judgment to be rendered or order to be made." (10) While federal district and circuit courts freely enlist fill-in judges as needed, no analog exists for filling a temporary SCOTUS vacancy. In fact, federal law flatly forbids it. (11) When the High Court deadlocks 4-4 (or 3-3, as happened in 1792, when the Court first split down the middle), (12) the lower-court judgment is automatically, procedurally, perfunctorily affirmed. With nine bland words, the case is nulled, exactly as if the Court had never granted certiorari in the first place: "The judgment is affirmed by an equally divided Court." (13) In other words, "a tie goes to the Respondent." (14)

A 4-4 nondecision, though hailed by the party that won below, carries the aura of failure. Failure to decide. Failure to guide. Failure to "get the conflict resolved," as Justice John Paul Stevens put it. (15) When certiorari is granted at SCOTUS, it means the issue was deemed significant by at least four justices who wanted to settle it. Briefs were submitted. Oral argument was held. Another cert petition that might have been granted was denied to make room for this one. True, the issue may recur, and the Court may not be shorthanded when it does. But for the foreseeable future, a 4-4 draw maroons the undecided issue on an island of legal confusion, where it lingers, unsettled, squandering untold public and private resources, lost in "the repeating loop of intercircuit conflicts." (16)

Sure, if shorthandedness results not from a recusal but from a vacancy, the Court can simply order reargument once it regains full strength. (17) Reargument is common. But if deadlock stems from a recusal, the lower-court decision persists, yielding finality (of a sort) to the parties but not to the People, for whom legal clarity must await another day, and possibly quite a far-off day.

The rule of affirmance by an equally divided Court is entirely judge-made. Nothing in positive law--constitutional, statutory, or otherwise--requires it, although Congress has tacitly accepted it. (18) Unlike the cert-granting Rule of Four, which "has become interwoven in the warp and woof of the jurisdictional statutes," (19) the rule of implicit affirmance is an internal housekeeping tradition. But it is a longstanding one, first appearing in 1792, when the Court divided 3-3 on a motion, (20) and formally adopted in 1825. (21)

By contrast, state high courts are less hidebound, and, frankly, more consequential. SCOTUS may be the highest court in the land (at least on federal-law matters). (22) "For most Americans," however, "Lady Justice lives in the halls of state courts." (23) "Day by day, American justice is dispensed--overwhelmingly--in state, not federal, judiciaries." (24) As Justice Scalia once observed, state law (and thus state courts) matter far more to citizens' everyday lives: "If you ask which court is of the greatest importance to an...