The Volokh Conspiracy

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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.