Supreme Court 4/4 Tie in November -- The Scariest Worst Case Scenario

Why 9 Supremes Sooner, Not Later

I’ve been waiting patiently for someone to write up the case for immediately filling the vacancy on the Supreme Court caused by the recent death of its ninth member.  Not the usual arguments RE: the Senate should do its job, or RE: the failure to do so is an unprecedented breach of constitutional norms.  No, I mean the real, acute danger to us all if we wait too long.

I happened to be watching TRMS on Feb. 15th when the best case I’ve heard so far was made.  Here it is in a nutshell: the 2000 presidential election was decided by the Supreme Court.  If that happened again, the Supremes could easily tie in a 4/4 vote given the court’s current makeup.

A good point.  But we all know that in a 4/4 Supreme Court tie the verdict of the lower court stands.  And while it wouldn’t be as satisfying to have a lower court resolve whatever the 2016 equivalent of hanging chads is, there would be resolution.

Take it one more step, though.  What if multiple states had either close vote counts that required recounts, or a confirmed hack of voting machines?  The election of 2000 made the former a reality, and the latter may have happened as well—precinct-by-precinct vote totals in Ohio in 2004 are arguably suspicious. 

So far, a scenario where multiple states have vote irregularities isn’t all that unlikely, given a close election--or one in which several state vote totals are within a recount's margin-of-error.

Now, though, let’s drop the hammer.  Remember, our first condition is that the Supreme Court is effectively tied 4/4 election day.  

And, our second condition is that two or more state Supreme Court rulings are made regarding the same kind of recount or tampering issue.

For example, a hacker is caught manipulating votes in both Ohio and Florida.  

Unfortunate as this scenario is, what if these cases were decided for the Republican in one state, and for the Democrat in the other.  For example, if in one state the votes in predominantly white counties were digitally retrieved at considerable expense and recounted after a hack, but not in predominantly black counties, due to the expense involved, while in another state all votes were retrieved and recounted.  This would be somewhat similar to the situation in 2000 in which the Supreme Court cited the Equal Protection Clause of the Constitution to halt an on-going recount.  

But if two states are involved in the above scenario, the Equal Protection Clause will be violated regardless, so long as a 4/4 Supreme Court can't resolve the issue.  And without resolution there’s no new President to appoint a ninth justice.  Checkmate, chaos.  Given our current political disfunction, this danger, even if it’s 1-in-100 or 1-in-1000 is too great a risk.  

Of course, if both states in our scenario certify their election results without a Supreme Court decision, a President is inaugurated, a 9th justice is nominated and confirmed, and if a decision is then rendered, the Supreme Court’s newly appointed ninth member could hypothetically overturn an election—especially if the Equal Protection Clause had obviously been violated.  Again, this would be an enormous constitutional crisis that we shouldn’t have to imagine, let alone live through.  A ninth Supreme Court justice installed prior to the election avoids the issue completely.

The larger picture is that deliberative justice requires an odd number of votes so that a decision is reached and one side is victorious.  Ultimately, this is why monotheism appeals to so many people: singularity leads to finality, and if we all agree to abide by that finality before it is rendered, there is harmony before and after.