Much Ado About Nothing?

Hawkins

Today the Supreme Court decided the seemingly innocuous case of Hawkins v. Community Bank of Raymore.  This case dealt with the liability of spousal guarantors under the Equal Credit Opportunity Act.  On any other day this ruling might have gone unnoticed.  The decision is one line reading, “The judgment is affirmed by an equally divided Court.”  But this is the first case decided by a four to four Justice vote since the passing of Justice Scalia. With a Court that has drawn much commentary for its ideological divisions, the not so latent expectation is that there may be more similar decisions to come and in cases dealing with more contentious issues.

But will this be the case? There is a twofold answer to this question.  The obvious one is we don’t know.  Although one could say the Court is split four to four with Kennedy, Thomas, Roberts, and Alito on the right and Breyer, Ginsburg, Sotomayor, and Kagan on the left these divisions do not hold for all issues and there may be incentives for the Justices not to fall victim to the four-four trap (e.g. these rulings do not make the cases go away, they only send them back down to the lower courts as if the Supreme Court had never heard them and thus they set no precedent. This could create greater workload for the Justices in the future).

The second reason is that decisions by an equally divided court are not new, they occur with a full Court of nine Justices as well as Courts with fewer Justices, and they are not extraordinarily unique. Since 1950 there have been over 100 (101 to be exact per the Supreme Court Database) cases where the Justices listed on the opinion that the decision was made by an equally divided vote.  The most recent such case was decided in 2011.  Since the Court is not in entirely novel territory, the Justices may use their historical knowledge of similar situations to wade through this quagmire.

The remainder of the post goes through these 101 cases.  Justice Scalia’s absence may lead to some chaos in the Court’s rulings, but given the Court’s experience with evenly split decisions, chaos is not the only possible result. Below is a list of each of these cases decided by an equally divided vote along with the decision date and the Justice that did not participate in the vote (if applicable).

BAILEY v. RICHARDSON et al., April 30, 1951 (Clark)

UNITED STATES v. PENNER INSTALLATION CORP., December 11, 1950 (Vinson)

COMPAGNA et al. v. HIATT, WARDEN., November 13, 1950 (Clark)

GARA v. UNITED STATES., October 23, 1950 (Clark)

VON MOLTKE v. GILLIES, SUPERINTENDENT, April 21, 1952 (Clark)

UNITED STATES EX REL. GIESE v. CHAMBERLIN, COMMANDING GENERAL, et al., October 15, 1951 (Minton)

UNITED STATES v. JORDAN et al., January 14, 1952 (Frankfurter)

MCGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, v. NAGANO, January 28, 1952 (Clark)

A/S J. LUDWIG MOWINCKELS REDERI et al. v. ISBRANDTSEN CO., INC. et al., March 10, 1952 (Clark)

UNITED STATES v. KLINGER et al. , June 15, 1953    (Jackson)

HARRISON, COLLECTOR OF INTERNAL REVENUE, v. BOHNEN, EXECUTOR, et al., May 04, 1953 (Jackson)

MARTINEZ v. NEELLY, SUCCESSOR TO JORDAN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE., January 12, 1953 (Clark)

GULF RESEARCH & DEVELOPMENT CO. et al. v. LEAHY, U.S. DISTRICT JUDGE, et al., October 27, 1952 (Vinson)

UNITED STATES v. BELL AIRCRAFT CORP., October 27, 1952 (Jackson)

CARDOX CORP. v. C-O-TWO FIRE EQUIPMENT CO., October 27, 1952 (Vinson)

BROWNELL, ATTORNEY GENERAL, v. RUBINSTEIN., January 11, 1954 (Clark)

RICE v. SIOUX CITY MEMORIAL PARK CEMETERY, INC. et al. , November 15, 1954 (NA)

INDIAN TOWING CO., INC. et al. v. UNITED STATES., April 11, 1955 (Harlan)

RYAN STEVEDORING CO., INC. v. PANATLANTIC STEAMSHIP CORP., April 11, 1955 (Harlan)

THOMPSON v. COASTAL OIL CO., January 30, 1956 (Harlan)

HYUN v. LANDON, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, March 26, 1956 (Clark)

UNITED STATES v. AMERICAN FREIGHTWAYS CO., March 04, 1957 (NA)

BARTKUS v. ILLINOIS., January 06, 1958  (Brennan)

LADNER v. UNITED STATES., January 06, 1958 (Brennan)

COLUMBIA BROADCASTING SYSTEM, INC., et al. v. LOEW’S INC. et al., March 17, 1958 (Douglas)

WOODY v. UNITED STATES., March 23, 1959 (Stewart)

LEV v. UNITED STATES, June 22, 1959 (Stewart)

EAGLE LION STUDIOS INC. v. LOEW’S INC., November 24, 1958 (Stewart)

YANCY v. UNITED STATES., April 18, 1960 (Stewart)

OHIO ex rel. EATON v. PRICE, CHIEF OF POLICE, June 27, 1960 (Stewart)

PAYNE v. MADIGAN, WARDEN, June 05, 1961 (Frankfurter)

CREEK NATION v. UNITED STATES, June 04, 1962 (Frankfurter)

BALTIMORE & OHIO RAILROAD CO. et al. v. BOSTON & MAINE RAILROAD et al., May 20, 1963 (White)

PRESSER v. UNITED STATES, November 13, 1962 (Goldberg)

MARKS v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, May 18, 1964 (Brennan)

VIKING THEATRE CORP. v. PARAMOUNT FILM DISTRIBUTING CORP. et al., June 15, 1964 (Douglas)

INDEPENDENT PETROLEUM WORKERS OF AMERICA, INC. v. AMERICAN OIL CO., November 23, 1964 (Goldberg)

UNITED STATES v. HUCK MANUFACTURING CO. et al., December 06, 1965 (Fortas)

ATLANTIC COAST LINE RAILROAD CO. et al. v. BROTHERHOOD OF RAILWAY TRAINMEN et al., October 24, 1966 (Fortas)

UNITED STATES v. PENN-OLIN CHEMICAL CO. et al., December 11, 1967 (Marshall)

BIGGERS v. TENNESSEE, March 18, 1968 (Marshall)

ALITALIA-LINEE AEREE ITALIANE, S.P.A. v. LISI et al., March 25, 1968 (Marshall)

ANDERSON v. JOHNSON, WARDEN, March 25, 1968 (Marshall)

WORLD AIRWAYS, INC., et al. v. PAN AMERICAN WORLD AIRWAYS, INC., et al., May 27, 1968 (Marshall)

DUVERNAY v. UNITED STATES., March 24, 1969 (Fortas)

STANDARD INDUSTRIES, INC. v. TIGRETT INDUSTRIES, INC., et al., April 20, 1970 (NA)

In re SPENCER, May 04, 1970 (NA)

ATLANTIC CITY ELECTRIC CO. et al. v. UNITED STATES et al., December 08, 1970   (Douglas)

DECKER, U.S. DISTRICT JUDGE, et al. v. HARPER & ROW PUBLISHERS, INC., et al., January 12, 1971 (Douglas)

GROVE PRESS, INC., et al. v. MARYLAND STATE BOARD OF CENSORS, March 08, 1971 (Douglas)

RADICH v. NEW YORK, March 24, 1971 (Douglas)

DEWEY v. REYNOLDS METALS CO., June 01, 1971 (Harlan)

UNITED STATES v. CHAS. PFIZER & CO., INC., et al., January 24, 1972 (3-3 vote, Stewart, White, and Marshall did not participate)

WILLIS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, March 20, 1972 (Powell)

UNITED STATES v. FIRST NATIONAL BANCORPORATION, INC., et al., February 28, 1973 (Powell)

SCHOOL BOARD OF CITY OF RICHMOND, VIRGINIA, et al. v. STATE BOARD OF EDUCATION OF VIRGINIA et al., May 21, 1973  (Powell)

FRI, ACTING ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY v. SIERRA CLUB et al., June 11, 1973 (Powell)

WILLIAMS & WILKINS CO v. UNITED STATES, February 19, 1975 (Blackmun)

PARKER SEAL CO. v. CUMMINS, November 02, 1976 (Stevens)

VORCHHEIMER v. SCHOOL DISTRICT OF PHILADELPHIA et al., April 19, 1977 (Rehnquist)

SHELL OIL CO. v. DARTT, November 29, 1977 (Stewart)

CARTER, PUBLIC VEHICLE LICENSE COMMISSIONER OF CHICAGO v. MILLER, January 17, 1978 (Blackmun)

MASSACHUSETTS v. WHITE, December 11, 1978 (Powell)

FEDERAL ENERGY REGULATORY COMMISSION v. SHELL OIL CO. et al., February 22, 1979 (Stewart)

WALTER FLEISHER CO., INC. v. COUNTY OF LOS ANGELES et al., January 26, 1981 (Stewart)

DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. BRADLEY ET AL, March 09, 1981 (Rehnquist)

STAATS, COMPTROLLER GENERAL OF THE UNITED STATES, et al. v. BRISTOL LABORATORIES DIVISION OF BRISTOL-MYERS CO., April 29, 1981 (Stewart)

KISSINGER et al. v. HALPERIN et al., June 22, 1981 (Rehnquist)

COMMON CAUSE et al. v. SCHMITT et al., January 19, 1982 (O’Connor)

AMERICAN MEDICAL ASSOCIATION et al. v. FEDERAL TRADE COMMISSION, March 23, 1982 (Blackmun)

KOEHLER, WARDEN v. ENGLE, March 26, 1984 (Marshall)

BOARD OF EDUCATION OF PARIS UNION SCHOOL DISTRICT NO. 95 et al. v. VAIL, April 23, 1984 (Marshall)

BOARD OF EDUCATION OF OKLAHOMA CITY v. NATIONAL GAY TASK FORCE, March 26, 1985 (Powell)

FUGATE v. NEW MEXICO, March 26, 1985 (Powell)

KENNETH CORY, LEO T. MCCARTHY AND JESSE R. HUFF v. WESTERN OIL AND GAS ASSOCIATION et al., March 27, 1985                (Powell)

ROGER L. SPENCER, ET UX. v. SOUTH CAROLINA TAX COMMISSION et al., March 27, 1985              (Powell)

BOARD OF TRUSTEES OF THE VILLAGE OF SCARSDALE, et al. v. KATHLEEN S. MCCREARY et al., March 27, 1985 (Powell)

OKLAHOMA v. TIMOTHY R. CASTLEBERRY AND NICHOLAS RAINERI, April 01, 1985 (Powell)

PATRICK RAMIREZ v. INDIANA, April 01, 1985 (Powell)

JENSEN, DIRECTOR, DEPARTMENT OF MOTOR VEHICLES OF NEBRASKA, et al. v. QUARING, June 17, 1985 (Powell)

EASTERN AIR LINES, INC. v. MAHFOUD ON BEHALF OF MAHFOUD et al., December 10, 1985 (Brennan)

PENSION BENEFIT GUARANTY CORPORATION v. YAHN & MCDONNELL, INC., et al., May 18, 1987 (White)

RONALD W. REAGAN, PRESIDENT OF THE UNITED STATES, et al. v. JAMES ABOUREZK et al., October 19, 1987 (3-3 vote, Scalia and Blackmun did not participate)

NEAL F. HARTIGAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, ETC., et al. v. DAVID ZBARAZ AND ALLAN G. CHARLES ETC., December 14, 1987 (NA)

MARINO et al. v. ORTIZ et al., January 13, 1988 (NA)

TRANS WORLD AIRLINES, INC. v. INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, March 02, 1988 (Kennedy)

TOMPKINS v. TEXAS, June 05, 1989 (O’Connor)

CALIFORNIA et al. v. UNITED STATES et al., June 12, 1989 (Marshall)

WYOMING v. UNITED STATES et al., June 26, 1989 (O’Connor)

MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS et al. v. THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, et al., November 13, 1989 (White)

UNITED STATES v. DARLINA K. FRANCE, January 22, 1991 (Souter)

FORD MOTOR CREDIT COMPANY, INC. v. DEPARTMENT OF REVENUE, STATE OF FLORIDA, May 20, 1991 (O’Connor)

MORGAN STANLEY & COMPANY, INCORPORATED, et al. v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, May 23, 1994 (O’Connor)

LOTUS DEVELOPMENT CORPORATION v. BORLAND INTERNATIONAL, INC., January 16, 1996 (Stevens)

CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, et al. v. PAUL FELZEN et al., January 20, 1999 (O’Connor)

ROBIN FREE, et al. v. ABBOTT LABORATORIES, INC., et al., April 03, 2000 (O’Connor)

BORDEN RANCH PARTNERSHIP AND ANGELO K. TSAKOPOULOS v. UNITED STATES ARMY CORPS OF ENGINEERS AND ENVIRONMENTAL PROTECTION AGENCY, December 16, 2002 (Kennedy)

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK v. TOM F., ON BEHALF OF GILBERT F., A MINOR CHILD, October 10, 2007 (Kennedy)

WARNER-LAMBERT CO., LLC, et al. v. KIMBERLY KENT et al., March 03, 2008 (Roberts)

COSTCO WHOLESALE CORPORATION, PETITIONER v. OMEGA, S.A., December 13, 2010 (Kagan)

RUBEN FLORES-VILLAR, PETITIONER v. UNITED STATES, June 13, 2011 (Kagan)

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