The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

One week away from Justice Barrett's (likely) confirmation, the Court 4-4's an appeal from the Pennsylvania Supreme Court

The application for a stay was filed on 9/28, and the briefing completed on 10/6. 13 days later, the Court was unable to break a deadlock.

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On September 28, the Republican Party of Pennsylvania filed an emergency application for a stay of a Pennsylvania Supreme Court decision. Circuit Justice Alito called for a response on October 5. And Pennsylvania filed a reply on October 6. That application had been pending for 13 days. This evening, the Court finally resolved the case with a 4-4 tie. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. By process of eliminations, we know that the temporary Roberts-four would have denied the application: Chief Justice Roberts, and Justices Breyer, Sotomayor, and Kagan.

My speculation: the Chief tried, mightily, to bring over another Justices to the majority. For nearly two weeks, the application was held up to see if there was a possible compromise. But none was to be had. Justices Gorsuch and Kavanaugh were resolute, and did not waver. As a result, the Court simply issued a two sentence order, without any published dissents.

The Court could have waited about a week until Justices Barrett was confirmed. (If all goes to Mitch's plan, ACB will be confirmed by Monday, October 26.) Imagine if this case was her first vote as a Supreme Court justice. But the Court prudently, in my mind, did not hold the case till a 9th Justice was confirmed. That move would have been transparent. Instead, the Court let the lower-court ruling stand. And, in the absence of any dissents or concurrences, the questions presented remain unresolved.

If this split is a preview of things to come, Justice Barrett very well may the tie-breaking vote in every election dispute, assuming she is not recused.