Supreme Court Fact Sheet: The Truth About a 4-4 Court
Fact: The absence of one of the nine justices on the Court is far from calamitous, but a hastily made lifetime appointment could be.
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Nothing in the Constitution specifies the number of justices that should serve on the Supreme Court. Rather, the Constitution places the power to determine the number of justices in the hands of Congress. This number has changed throughout history. For example, at the beginning of our Republic, only six Justices served on the Supreme Court. Over the years, Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the current number of justices at nine.
The Supreme Court has operated without a full contingent of Justices at various times throughout history. In these situations, the Court has well-established rules for dealing with its cases, including 4-4 splits.
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For example, in 1969, the seat vacated by Justice Abe Fortas stayed open for more than a year after Senate Democrats blocked multiple candidates nominated by President Richard Nixon.
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More often, justices recuse themselves from cases in which they might have a conflict of interest. In such situations, the Supreme Court continues to operate with a reduced number of Justices. A recusal never inhibits the Supreme Court from functioning, even in high-profile cases. For example, Justice Elena Kagan recused herself as recently as 2013 in Fisher v. University of Texas, but the Supreme Court still easily reached a decision with only eight justices
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Having an even number of justices doesn’t significantly affect the Supreme Court’s work because the vast majority of the Court’s decisions are nearly unanimous or split along non-ideological lines. Should a tie occur, the ruling of the lower court is simply upheld.
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Although unlikely, should any controversy arise, the Court has the authority to hold cases over or reargue them once a new justice is confirmed.
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