Supreme Court

Judge Don Willett on Supreme Stalemates

An interesting exploration of what happens when high courts are evenly divided.


Last week, the Honorable Don Willett of the U.S. Court of Appeals for the Fifth Circuit delivered the 2021 Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law on "Supreme Stalemates." The lecture explored what happens when supreme courts split evenly, usually due to recusals or vacancies.

When the U.S. Supreme Court slits 4-4, the judgment below is affirmed by an evenly divided court, and no Supreme Court precedent is created. At the state level, however, there are often mechanisms that will break the tie through the addition of an additional judge. These approaches vary, however, in quite interesting ways. And note: Although Judge Willett is a proud Texan, he is not particularly proud of the way the Texas Supreme Court (on which he served) deals with tie votes.

Video of the lecture is below.

Prior Canary lectures are indexed here.

NEXT: Today in Supreme Court History: September 13, 1810

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  1. “When the U.S. Supreme Court slits 4-4”

    I will withhold my obvious observation consequent to (1) respect for Prof. Adler, who is trying to contribute serious thinking, and (2) Prof. Volokh’s delicate sensibilities, hoping to avoid another episode of his censorship.

    1. The number of Justices should be changed to an even number. Most 5-4 decisions have been destructive. An even number would preserve precedents more often.

  2. The most impressive part of that presentation is that the widow of a 1927 Case Western law graduate attended it. Congratulations, madam!

    The least impressive part of this series of lectures is that is it dominated by prominent, strident culture war casualties.

  3. Each group of 4 forms a team, and the two teams try to drink each other under the table. Whoever remains conscious wins.

  4. Top 10 ways to resolve a 4-4 split:

    10) Quidditch match!

    9) Rock, paper scissors

    8) Play Dungeons and Dragons, whichever team gets back from the Caves of Chaos with the most experience points wins.

    7) Play a game of Super Mario Brothers in two-player mode, whoever saves the princess first wins.

    6) Take turns playing Russian Roulette until the vote is 4-3

    5) Strip poker, so the losing side not only loses the case but has to beg for their clothes back

    4) Take turns doing William Tell re-enactments until the vote is 4-3

    3) Jello Wrestling

    2) Mixed Martial Arts tournament

    …and the #1 way to resolve a 4-4 split is…

    1) The side with the best hair wins

    1. I thought it was resolved by each side writing a majority decision then the Clerk of the Supreme Court stands at the top of the steps at 1 First Street NE and throws them into the air. Whichever travels the furthest is declared the majority opinion. It’s the principle of “Stair-y Decisis!”

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