Justice Ruth Bader Ginsberg said this week, "Eight, as you know, is not a good number for a multi-member court."
To wit: Texans are waiting for a Supreme Court decision over state abortion restrictions this session, but the court isn’t at full-strength after the passing of Justice Antonin Scalia last year. This raises the possibility of a potential stalemate. And a tie among the highest court in the country doesn't get a do-over – it just means the lower court ruling stands.
"Ties happen,” says Texas Supreme Court Justice and "Tweeter Laureate" Don Willett. “And if we tie, we tie – which is sort of unfulfilling and unsatisfying to a lot of people who want guidance.”
But Willett says maybe SCOTUS could learn a thing or two from the state courts.
Every state Supreme Court is odd-numbered, but they occasionally find themselves with an even number of judges. But some states have adopted a solution when faced with a supreme stalemate.
Willett recently penned a piece in the Wall Street Journal opining on the importance of the Supreme Court providing a backup plan for potential stalemates.
Speaking of which: Willett is also on one candidate's shortlist to replace Scalia. Asked if he’d accept a Trump nomination, Willett says he’s exercising "resolute judicial restraint" in giving an answer.
"The law's a majestic thing,” Willett says. “When the people place that title ‘Judge’ or ‘Justice’ on someone, they place in human hands that profound majesty which really impacts the life of every single Texan."
Returning to the topic of tie-breaking, Willett says 16 of the nation's 50 state Supreme Courts model their approach on SCOTUS, while the other 34 states – Texas included –have a substitute justice procedure.
Each of the 34 states' approaches vary widely, and differ in three important ways.
When a tie-breaker justice is appointed:
23 states try to bypass judicial impasses altogether by assigning a substitute judge before the court hears the case. This occurs as soon as the court dips below full strength.
Who does the appointing:
In some courts, the chief justice will name a substitute. In other states, the court does collectively. In a few states, Texas included, the governor picks a substitute. And in other states, the court may deputize a staff member to make the selection, thereby curbing accusations of judicial bias.
How much discretion the appointer has:
In some states, the pick isn't a purposeful, intentional selection. Justices may be chosen alphabetically, randomly or rotationally from a pool of eligible appointees.
In Louisiana, for instance, there’s a 30-year-old tradition where the court clerk draws a name from a giant plastic Halloween jack-o-lantern. In Washington state, they have a similar process – but they use a crystal or ceramic chalice. In New Hampshire, the court uses a white envelope.
Willett says there’s varying degrees of imperfection in all these solutions.
"There's no glitch-free mechanism for resolving impasse,” he says.
He proposes that courts keep the selection of a substitute justice in-house. Before each term begins, Willett says the court could collectively name five or six appointees. Then, if the court deadlocks during the term, it could draw a name randomly from that pool.
“I say put the names in a ten-gallon Stetson and pluck out a name randomly, if and when deadlock arises."
Post by Beth Cortez-Neavel.