Today we had two more cases affirmed by equally divided Courts.  These included the quite contentious immigration case of United States v. Texas.  Surprisingly, no Justice dissented from either of today’s equal divisions.  In fact, according to my count, no Justice has dissented from an equally divided Court in almost 50 years (Justice Roberts dissented in Franchise Tax Bd. v. Hyatt but not regarding Q1 about Nevada v. Hall).  Why don’t we see more dissents in these cases (part of the reason may be that there aren’t many of them)? Do the Justices not want to give away their positions? It is an interesting case-study for the transparency of the Court debate.

Here are the four cases where we have seen dissents from affirmances by equally divided Courts.

• Standard Indus., Inc. v. Tigrett Indus., Inc., 397 U.S. 586 (1970) (Justice Black Dissenting)
• Biggers v. Tennessee, 390 U.S. 404 (1968) (Justice Douglas Dissenting)
• Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960) (Justice Brennan Dissenting)
• Lewis v. Benedict Coal Corp., 361 U.S. 459 (1960) (Equally divided in part) (Justice Frankfurter Dissenting)