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What does a 4-4 Court mean?
- Fisher v. University of Texas, the affirmative action case.
- Whole Woman’s Health v. Hellerstedt (abortion in Texas)
- United States v. Texas (immigration DAPA/DACA) (what is it with Texas?)
- Criminal procedure cases–Supreme Court rejecting a hem wholesale so far
- Class action cases–ditto
- Maybe not often are 4-4s issued, but even in cases of a fully staffed SCOTUS recusals can cause issues. I
- Issues are being taken up at the Court and questions being asked.
- Justices coming out of the gate saying “no big deal; we got this” to shore up confidence in the Supreme Court
- Justice Kagan saying that they’re trying to avoid deadlocks (Supreme Court is Working Hard to Avoid Deadlocks, Kagan Says) trying to only pull cases where they won’t be closely split; so decisions all the way through – from cert to final judgement are implicated
- Zubik supplemental briefing
- How long will this will go on?
- Examples of how what the Court does or does not do actually impact a number of issues: business, 4th Amendment issues – local law enforcement
- On a case-by-case basis, it can swing either way substantively depending on your point of view of the Court of Appeals holding.
- Untenable in the medium and long term because it hampers the Court from its role in arbitrating Circuit splits.
- This is not ideal and is fixable based on decades of precedent. If we have a vacancy, the President nominates and the Senate considers and votes. Period.