Original Jurisdiction Deadlocks

Yale Law Journal

Volumn 118, Issue 5, 2009, Pages 1003-1012

  Cqenen, Michael ^a  

^a NONE

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EID: 66749114906     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (62)

1. 128 S. Ct. 1410 (2008).
2. Linda Greenhouse, Court Blocks Plans for New Gas Plant in New Jersey, N.Y. TIMES, Apr. 1, 2008, at B4;
3. see John V. Orth, How Many Judges Does It Take To Make a Supreme Court?, 19 CONST. COMMENT. 681, 686 n.27 (2002) ("What would happen in the event of an evenly divided court in a case within the Supreme Court's original jurisdiction is unknown.").
4. The Supreme Court has issued around 175 "full decisions" in original jurisdiction cases. LAWRENCE BAUM, THE SUPREME COURT 9 (8th ed. 2004). The Court has rendered at least ten such decisions in the past eleven years.
5. See New Jersey, 128 S. Ct. 1410;
6. Alaska v. United States, 545 U.S. 75 (2005);
7. Kansas v. Colorado, 543 U.S. 86 (2004);
8. Virginia v. Maryland, 540 U.S. 56 (2003);
9. Kansas v. Colorado, 533 U.S. 1 (2001);
10. New Hampshire v. Maine, 532 U.S. 742 (2001);
11. Arizona v. California, 530 U.S. 392 (2000);
12. Federal Republic of Germany v.United States, 526 U.S. 111 (1999);
13. New Jersey v. New York, 523 U.S. 767 (1998);
14. Breard v. Greene, 523 U.S. 371 (1998).
15. 78 U.S. (11 Wall.) 39 (1870).
16. CHARLES FAIRMAN, RECONSTRUCTION AND REUNION 1864-88, pt. 1, at 625 (The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States, vol. 6, 1971).
17. Id.
18. 345 U.S. 286 (1953), vacated on reh'g, 348 U.S. 1 (1954).
19. 348 U.S. 1.
20. See Ryan Black & Lee Epstein, Recusals and the "Problem" of an Equally Divided Court, 7 J. APP. PRAC. & PROCESS 75, 82 n.34 (2005).
21. The potential for uncertainty points to an additional downside to an ad hoc approach: distortions in the Justices' recusal determinations. Indeed, this is a phenomenon already observed in appellate cases. See, e.g., An Open Discussion with Justice Ruth Bader Ginsburg, 36CONN. L. REV. 1033, 1038 (2004) (noting that "it is important that [Justices] not lightly recuse [them]selves" because "if one of us is out, that leaves eight, and the attendant risk that we will be unable to decide a case");
22. Black & Epstein, supra note 9, at 97. Distortions would be exacerbated in the original jurisdiction context, in which there exists the added burden of deciphering a tie's meaning.
23. See William L. Reynolds & Gordon G. Young, Equal Divisions in the Supreme Court: History, Problems, and Proposals, 62 N.C. L. REV. 29, 36 (1983).
24. Members of the Court have at times expressed concern about undue delay in the resolution of cases. See, e.g., Steel CO. v. Citizens for a Better Env't, 523 U.S. 83, 111 (1998) (Breyer, J., concurring in part and concurring in the judgment) (criticizing the majority opinion on the grounds that "it increases . . the risk of 'justice delayed' that means 'justice denied'"); Di Santo v. Pennsylvania, 273 U.S. 34, 42 (1927) (Brandeis, J., dissenting) ("It is usually more important that a rule of law be settled, than that it be settled right.").
25. Cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 674 (1994) (Stevens, J., concurring in part and concurring in the judgment) (noting that "[a]n accommodation is . . necessary" to render a disposition in the case).
26. See U.S. CONST. art. I, § 3 (designating the Vice President as the official tiebreaker for votes in the Senate).
27. See Reynolds & Young, supra note 11, at 36;
28. see, e.g., N.J. CONST. art. VI, § 2, para. 1;
29. TEX. CONST. art. V, § 11;
30. Winterwerp v. Allstate Ins. CO., 357 A.2d 350 (Md. 1976);
31. Edward A. Hartnett, Ties in the Supreme Court of New Jersey, 32 SETON HALL L. REV. 735, 738 (2003).
32. 28 U.S.C. § 294(d) (2000);
33. see also id. §§ 291-292 (establishing the procedures by which active district and circuit court judges may sit by designation on other courts);
34. Edward A. Hartnett, Ties in the Supreme Court of the United States, 44 WM. & MARY L. REV. 643, 647 (2002) ("[T]he statute authorizing the assignment of retired district and circuit judges to judicial duties specifically excludes assignments to the Supreme Court.").
35. See Reynolds & Young, supra note 11, at 39 n.52 ("The argument against designation . . would contend that there is but one supreme court, The Supreme Court. . Moving a judge to the Supreme Court, the argument continues, requires an appointment to that Court. Support for the argument is provided by the need felt, at least in some states, to provide specifically for that designation in the Constitution.").
36. See Linda Greenhouse, Supreme Court: Mysteries of Tie Votes and Calls for Reargument, N.Y. TIMES, Apr. 3, 1985, at A20.
37. See, e.g., Warner-Lambert Co. v. Kent, 128 S. Ct. 1168 (2008).
38. See, e.g., HENRY M. ROBERT ET AL., ROBERT'S RULES OF ORDER art. VIII, § 44 (10th ed. 2000) ("On a tie vote the motion is lost . .").
39. See, e.g., Hartnett, supra note 16, at 652 (characterizing the practice as "an application of a broader principle that applies generally in multimember bodies governed by majority rule: the body cannot take any affirmative action based on a tie"). In support of this point, Harnett cites to an old case from the British House of Lords which relied on the "ancient principle" of semper praesumitur pro negante ("it is always presumed in favor of the negative") to treat a tie vote as an affirmance of the lower court.
40. See Regina v. Millis, 8 Eng. Rep. 844, 982 (1843).
41. Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868).
42. INS v. Chadha, 462 U.S. 919, 951 (1983);
43. see also id. ("When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it." (emphasis added)).
44. The Court's original jurisdiction over state-versus-state cases is nondiscretionary; its original jurisdiction over all other types of cases mentioned in Article iii is discretionary. See 28 U.S.C. § 1251 (2000);
45. EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE § 10.1, at 609-13 (9th ed. 2007).
46. See GRESSMAN ET AL., supra note 24, § 10.12, at 642. A survey of the Court's original docket indicates that the Court has not in the past twenty-five years issued an opinion on the merits of an original case without a Master's recommendations before it.
47. The Master's rise in prominence has not gone uncriticized. See, e.g., Anne-Marie C. Carstens, Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court's Original Jurisdiction Cases, 86 MINN. L. REV. 625 (2002);
48. see also Maryland v. Louisiana, 451 U.S. 725, 763 (1981) (Rehnquist, J., dissenting) ("Of course this Court cannot sit to receive evidence or conduct trials - but that fact should counsel reluctance to accept cases where the situation might arise, not resolution of the problem by empowering an individual to act in our stead.").
49. See Carstens, supra note 26, at 655-56.
50. E.g., Wisconsin v. Illinois, 388 U.S. 426 (1967);
51. see GRESSMAN ET AL., supra note 24, § 10.12 at 643;
52. Carstens, supra note 26, at 656.
53. See Carstens, supra note 26, at 648 (noting that non-judge Masters in particular are chosen on account of a "demonstrated specialized expertise with respect to the issues central to the dispute").
54. See GRESSMAN ET AL., supra note 24, § 10.12, at 642-44 (outlining in detail the Master's numerous adjudicative duties).
55. Reynolds & Young, supra note 11, at 46. Another alternative might call for the remedy that is most likely to leave in place the real world status quo ante-regardless of which party happens to shoulder the relevant evidentiary burdens. But application of this rule would also be far from clear in many situations. In quiet title actions between states, for example, there is typically no status quo ante (other than ongoing conflict) for the Court to leave intact.
56. See, e.g., Georgia v. South Carolina, 497 U.S. 376, 379 (1990) (involving a "prolonged dispute between the two States over the location of their boundary along the lower reaches of the Savannah River").
57. 345 U.S. 286 (1953).
58. Id. at 287.
59. 348 U.S. 1 (1954).
60. Of course, an OJD might arise when there are no Master's recommendations to affirm. In re Isserman now provides clear guidance for one set of cases-that is, disbarment actions. But what might the Court do with a Master-free OJD that does not involve disbarment? One possible solution for this improbable scenario is the following: When the case appears to present a clear status quo ante, the Court should continue to adhere to the non-disruption principle by doing nothing to upset the current state of affairs. When the Court anticipates difficulties in defining non-disruption, however, it could opt instead for an "anti- designation" rule, which would randomly recuse an additional Justice before oral argument to render the Court incapable of producing a tie.
61. It might be argued that the Master's participation is more objectionable under Article III when he does not sit on the federal bench. The Court has relied more heavily on non-Article III Masters as of late, see GRESSMAN ET AL., supra note 24, § 10.12, at 645, and it would do well to resume selecting Masters who have been appointed and confirmed to serve as federal judges.
62. See Carstens, supra note 26, at 656 ("The delegation of trial tasks to a Special Master, followed by review by the Supreme Court, allows the Court to operate facilely in the manner in which it is most accustomed-that of an appellate court scrutinizing the facts and conclusions of an inferior actor or body.").