Relevant to our earlier discussion of how Justice Scalia’s passing affects Friedrichs, University of Denver Professor Justin Pidot recently posted a draft paper regarding tie votes in the Supreme Court. In his paper, Professor Pidot contends that ties not only “cause mischief because they leave legal issues undecided,” but also “pose a threat to the Court’s perceived legitimacy” insofar as they operate as “an admission that the justices have failed to fulfill their job responsibilities because they could find no manner of resolving a case that was acceptable to a majority of the court.”

Analyzing tie-vote cases from 1925 to 2015, Professor Pidot suggests that “there is no pressing need to create a tie-breaker where the Supreme Court is deadlocked” because “where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance.”

Accordingly, Professor Pidot calls upon the Court to “abandon the practice of affirming by equal division and instead dismiss [tied] cases as improvidently granted”:

Doing so would avoid potential public backlash against tie votes, protecting the public perception of the Court’s legitimacy. Doing so would also reduce the potential for justices to write opinions to accompany affirmances by equal division that take public positions on issues that have not yet been resolved by the Court. Finally, as a matter of cognitive psychology, justices may feel internal pressure to remain consistent with a position once staked out in a vote. Dismissing the case, rather than affirming by an equally divided court, could alleviate that psychological pressure, allowing the justices to be more fair-minded when approaching the next case.

Again, Professor Pidot’s draft paper is available here.