Justice Ruth Bader Ginsberg said this week, "Eight, as you know, is for a multi-member court."
To wit: Texans are waiting for a Supreme Court decision over state abortion restrictions this session, but the court isn鈥檛 at full-strength after the passing of Justice Antonin Scalia last year. This raises the possibility of a potential stalemate. And a tie among the highest court in the country doesn't get a do-over 鈥� it just means the lower court ruling stands.
"Ties happen,鈥� says Texas Supreme Court Justice and ". 鈥淎nd if we tie, we tie 鈥� which is sort of unfulfilling and unsatisfying to a lot of people who want guidance.鈥�
But Willett says maybe SCOTUS could learn a thing or two from the state courts.
Every state Supreme Court is odd-numbered, but they occasionally find themselves with an even number of judges. But some states have adopted a solution when faced with a supreme stalemate.
Willett recently penned a piece in the Wall Street Journal opining on the importance of the Supreme Court for potential stalemates.
Speaking of which: Willett is also to replace Scalia. Asked if he鈥檇 accept a Trump nomination, Willett says he鈥檚 exercising "resolute judicial restraint" in giving an answer.
"The law's a majestic thing,鈥� Willett says. 鈥淲hen the people place that title 鈥楯udge鈥� or 鈥楯ustice鈥� on someone, they place in human hands that profound majesty which really impacts the life of every single Texan."
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Returning to the topic of tie-breaking, Willett says 16 of the nation's 50 state Supreme Courts model their approach on SCOTUS, while the other 34 states 鈥� Texas included 鈥揾ave a substitute justice procedure.
Each of the 34 states' approaches vary widely, and differ in three important ways.
When a tie-breaker justice is appointed:
23 states try to bypass judicial impasses altogether by assigning a substitute judge before the court hears the case. This occurs as soon as the court dips below full strength.
Who does the appointing:
In some courts, the chief justice will name a substitute. In other states, the court does collectively. In a few states, Texas included, the governor picks a substitute. And in other states, the court may deputize a staff member to make the selection, thereby curbing accusations of judicial bias.
How much discretion the appointer has:
In some states, the pick isn't a purposeful, intentional selection. Justices may be chosen alphabetically, randomly or rotationally from a pool of eligible appointees.
In Louisiana, for instance, there鈥檚 a 30-year-old tradition where the court clerk draws a name from a giant plastic Halloween jack-o-lantern. In Washington state, they have a similar process 鈥� but they use a crystal or ceramic chalice. In New Hampshire, the court uses a white envelope.
Willett says there鈥檚 varying degrees of imperfection in all these solutions.
"There's no glitch-free mechanism for resolving impasse,鈥� he says.
He proposes that courts keep the selection of a substitute justice in-house. Before each term begins, Willett says the court could collectively name five or six appointees. Then, if the court deadlocks during the term, it could draw a name randomly from that pool.
鈥淚 say put the names in a ten-gallon Stetson and pluck out a name randomly, if and when deadlock arises."
Post by Beth Cortez-Neavel.
