Ties in the Supreme Court of the United States.

• Author: Hartnett, Edward A.

INTRODUCTION I. THE INABILITY TO REPLACE AN ABSENT OR RECUSED JUSTICE II. THE WIDESPREAD AND LONGSTANDING PRACTICE OF AFFIRMANCE BY AN EQUALLY DIVIDED COURT HAS BEEN ENDORSED BY CONGRESS III. THE UNNECESSARY CONFUSION THAT WOULD RESULT FROM ALTERNATIVE RULES FOR HANDLING AN EQUAL DIVISION IV. THE FOLLY OF SWITCHING VOTES TO AVOID AN EQUAL DIVISION V. THE SPECIAL CASE OF STAYS PENDING CERTIORARI IN CAPITAL CASES CONCLUSION INTRODUCTION

In the summer of 2001, two high-profile murder cases, both involving defendants who were minors when they committed their crimes, produced tie votes of three-to-three in courts of last resort. One involved Samuel Manzie, who, at the age of fifteen, killed an eleven-year-old boy named Eddie Werner when he came to Manzie's door selling candy. (1) Against the advice of his lawyer and his family, Manzie, himself the victim of sexual abuse by a pedophile, pleaded guilty to murder. (2) He was sentenced to seventy years of imprisonment, with no eligibility for parole until he had served nearly sixty years. (3) The Appellate Division of the New Jersey Superior Court affirmed the seventy-year sentence, but reduced the parole ineligibility period to thirty years, reasoning that New Jersey's No Early Release Act, upon which the trial court had relied in setting the parole ineligibility period, did not apply to murder. (4) The Supreme Court of New Jersey affirmed by a vote of three-to-three. (5)

The second involved Napoleon Beazley, who, at the age of seventeen, stole a car by killing its driver, John Luttig. (6) Beazley, the president of his senior class with no prior criminal record, (7) was convicted of capital murder and sentenced to death. (8) The Court of Appeals for the Fifth Circuit rejected Beazley's contention that the Eighth Amendment and the International Covenant on Civil and Political Rights bar the execution of someone who was a minor at the time of the crime. (9) Beazley's application for a stay of execution pending certiorari was denied on a tie vote by the Supreme Court of the United States. (10)

The New Jersey Supreme Court decision in Manzie has been criticized for failing to resolve the important legal issue involved. (11) The United States Supreme Court decision in Beazley has been assailed on the ground that "[al tie shouldn't go to the executioner." (12)

In this Article, I defend the traditional practice of the Supreme Court of the United States and respond to various suggestions for avoiding or breaking ties in the Court, but recommend a statutory change dealing with stays of execution upon the grant of certiorari. In a companion article, I explore the state law provisions for temporary assignments to the Supreme Court of New Jersey, a mechanism that has been suggested as a way to avoid or break ties, and argue as a matter of state constitutional law that such assignments should only be made when necessary to make a quorum. (13)

1. THE INABILITY TO REPLACE AN ABSENT OR RECUSED JUSTICE

   The traditional practice of the Supreme Court of the United States is that "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." (14) Although equal divisions on today's nine-member Court result from recusals, absences, or vacancies, such equal divisions can result on a full bench if Congress sets the size of the Supreme Court at an even number, as it did from 1789 until 1807, (15) and from 1863 until 1866. (16)

   There is no provision in federal law for temporarily replacing a Supreme Court Justice, even if the result is the absence of a quorum of six Justices. (17) While circuit and district judges may be temporarily assigned to other circuits or districts, there is no authority for their temporary assignment to the Supreme Court. (18) Indeed, the statute authorizing the assignment of retired district and circuit judges to judicial duties specifically excludes assignments to the Supreme Court. (19)

   The closest thing to a temporary assignment to the Supreme Court is a recess appointment, whereby the President can "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." (20) This, of course, is (at best) only available to deal with vacancies, and only when the Senate is in recess; it is not available to deal with recusals or other temporary absences.

   Professor Steven Lubet, however, has asserted that "there would appear to be no statutory impediment to a Court rule (or practice) that calls upon retired Justices to participate in certain votes," because retired Justices "retain the office" upon retirement. (21) Lubet overlooks that "[n]o retired Justice or judge shall perform judicial duties except when designated and assigned," (22) and that the tasks to which a retired Justice may be assigned are limited to "judicial duties in any circuit, including those of a circuit justice." (23) When Congress in 1937 extended the judicial retirement statute to Supreme Court Justices, both proponents and opponents made clear that this provision was designed to prohibit retired Justices from participating in Supreme Court cases. The Report of the House Judiciary Committee could not be clearer: "Under the terms of this bill a retired Justice would be relieved from regular active service. He would no longer sit in the Supreme Court, by assignment or otherwise, and a successor to him on that Court would be appointed." (24)

   The same understanding was manifest in the Senate. As Senator McCarran explained in presenting the bill:

   What would be the status of a Justice of the Supreme Court who might take advantage of this law if it should be enacted? The status would be that he would have retired from the Supreme Bench but would still retain his status as an inactive judge, subject to call which he himself might accept or not accept into the circuits or other courts lower than the Supreme Court. (25) In opposing the bill, Senator Burke stated that it was "not quite accurate" to say that the bill merely extended to the Supreme Court Justices the retirement provisions already in effect for circuit and district judges. (26) He noted that retired judges may continue to sit in their court of appointment, but that

   [the] bill before us provides, distinct from that, that any member of the Supreme Court who should retire under this provision of the law could under no circumstances be recalled for duty on the Supreme Court, but would be subject to call--true, at his own will--only in a different orbit altogether, in the lower courts. So I think there is a vital distinction between the pending bin and the existing statute. (27) II. THE WIDESPREAD AND LONGSTANDING PRACTICE OF AFFIRMANCE BY AN EQUALLY DIVIDED COURT HAS BEEN ENDORSED BY CONGRESS

   Professor Thomas Baker has explicitly criticized the Court's practice of affirmance by an equally divided Court, using the case of Free v. Abbott Laboratories, Inc., (28) as his target. Indeed, although there was nothing the Supreme Court could have done to replace the recused Justice O'Connor in Free, Baker has written that he "would give the Justices a `C-' for their effort, or lack of effort" in that case. (29) In his view, the rule of affirmance by an equally divided Court is "an internal procedural finesse ... not required by the Constitution or by any statute." (30) He contrasts the rule of affirmance by an equally divided Court with the rule of four, pursuant to which a petition for certiorari is granted if four Justices vote to grant. He describes the rule of four as part of the mutual understanding between Congress and the Justices, but claims "the rule of affirmance by an equally divided Court has not been blessed by Congress," and therefore, the Court is free to "ignore" it. (31) Although he contends that the Court could adopt the contrary rule of reversal by an equally divided Court, his preferred alternative is that "[s]omeone on the Court [be] willing to compromise and change his or her vote to settle an important issue and to move the policy question back to Congress." (32)

   Baker is wrong to assert that Congress has not endorsed the rule of affirmance by an equally divided Court. Indeed, its endorsement of that rule is clearer than its endorsement of the rule of four. The rule of four appears in no statute, but rather was one of the methods of handling petitions for certiorari that the Justices, when they lobbied Congress to give the Justices greater discretionary control over their docket, assured Congress they would continue to use. (33) Although I am pleased that the Court has kept its promise regarding the rule of four, it has not kept the other promises given to Congress at the time," and at least one Justice has suggested abandoning even the rule of four. (35)

   In contrast, the rule of affirmance by an equally divided Court does appear in the federal judicial code:

   If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose.... In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. (36) Although it is true that it is not an explicit congressional requirement that the Supreme Court utilize the rule of affirmance by an equally divided Court, it clearly represents Congress' awareness and endorsement of that rule...