How Supreme Court Tie Votes Could Impact Major Cases

Scalia’s Absence Could Impact Important Cases

People protesting in front of U.S. Supreme Court building
Activists Rally In Front Of U.S. Supreme Court Building. Mark Wilson / Getty Images

Beyond all the political ranker and rhetoric spurred by the death of Antonin Scalia, the absence of the strongly conservative justice could have a major impact on several key cases to be decided by the U.S. Supreme Court.


Before Scalia’s death, the justices considered to be social conservatives held a 5-4 edge over those considered liberals, and many controversial cases were indeed decided in 5-4 votes.

Now with Scalia’s absence, some especially high-profile cases pending before the Supreme Court may result in 4-4 tie votes. These cases deal with issues like access to abortion clinics; equal representation; religious liberty; and deportation of illegal immigrants.

The possibility for tie votes will remain until a replacement for Scalia is nominated by President Obama and approved by the Senate. This means the Court will probably deliberate with only eight justices for the rest of its current 2015 term and well into the 2016 term, which starts in October 2106.

While President Obama promised to fill Scalia’s vacancy as soon as possible, the fact that Republicans control the Senate is likely to make that a hard promise for him to keep.

What Happens If the Vote is a Tie?

There are no tie-breakers. In the event of tie vote by the Supreme Court, the rulings issued by the lower federal courts or state supreme courts are allowed to remain in effect as if the Supreme Court had never even considered the case. However, the rulings of the lower courts will have no “precedent setting” value, meaning they will not apply in other states as with Supreme Court decisions. The Supreme Court can also reconsider the case when it again has 9 justices.

The Cases in Question

The highest profile controversies and cases still to be decided by the Supreme Court, with or without a replacement for Justice Scalia, include:

Religious Freedom: Birth Control Under Obamacare 

In the case of Zubik v. Burwell, employees of the Roman Catholic Diocese of Pittsburgh objected to participating in any way with the birth control coverage provisions of the Affordable Care Act – Obamacare – claiming that being forced to do so would violate their First Amendment rights under the Religious Freedom Restoration Act. Prior to the Supreme Court’s decision to hear the case, seven circuit courts of appeals rule in favor of the federal government’s right to impose the requirements of Affordable Care Act on the employees. Should the Supreme Court arrive at a 4-4 decision, the rulings of the lower courts would remain in effect.

Religious Freedom: Separation of Church and State

In the case of Trinity Lutheran Church of Columbia, Inc. v. Pauley, a Lutheran church in Missouri applied for a state recycling program grant to build a children’s playground with a surface made from recycled tires. The State of Missouri denied the church’s application based on a provision of the state’s constitution stating, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” The church sued Missouri, claiming the action had violated its First and Fourteenth Amendment rights. The court of appeals dismissed the suit, thus upholding the state’s action.

Abortion and Women’s Health Rights

A Texas law enacted in 2013 required abortion clinics in that state to comply with the same standards as hospitals, including requiring the clinics’ doctors to have admitting privileges at hospital within 30 miles of the abortion clinic. Citing the law as the cause, several abortion clinics in the state have closed their doors. In the case of Whole Woman's Health v. Hellerstedt, to be heard by the Supreme Court in March 2016, the plaintiffs argue that the 5th Circuit Court of Appeals was wrong in upholding the law.

Based on his past decisions dealing with questions of the rights of the states in general and abortion specifically, Justice Scalia was expected to vote to uphold the lower court’s ruling.


In a major victory for abortion rights supporters, the Supreme Court on June 27, 2016 rejected the Texas law regulating abortion clinics and practitioners in a 5-3 decision. 

Immigration and Presidential Powers

In 2014, President Obama issued an executive order that would allow more illegal immigrants to remain in the U.S. under the “deferred action” deportation program created in 2012, also by an Obama executive order. Ruling that Obama’s action violated the Administrative Procedure Act, the law loosely regulating the federal regulations, a federal judge in Texas barred the government from implementing the order. The judge’s ruling was then upheld by a three-judge panel of the 5th Circuit Court of Appeals. In the case of United States v. Texas, the White House is asking the Supreme Court to overturn the 5th Circuit panel’s decision.

Justice Scalia was expected to vote to uphold the 5th Circuit’s decision, thus blocking the White House from implementing the order by a 5-4 vote. A 4-4 tie vote would have the same result. In this case, however, the Supreme Court might express its intention to reconsider the case after a ninth justice has been seated.


On June 23, 2016, the Supreme Court issue a split 4-4 “no-decision,” thus allowing the Texas court’s ruling to stand and blocking President Obama’s executive order on immigration from taking effect. The ruling could affect more than 4 million undocumented immigrants seeking to apply for the deferred action programs in order to stay in the United States. The one-sentence ruling issued by the Supreme Court simply read: “The judgment [of the lower court] is affirmed by an equally divided Court.”

Equal Representation: ‘One Person, One Vote’

It may be a sleeper, but the case of Evenwel v. Abbott could affect the number of votes your state gets in Congress and thus the electoral college system.

Under Article I, Section 2 of the Constitution, the number of seats allocated to each state in the House of Representatives is based on the “population” of the state or its congressional districts as counted in the most recent U.S. census. Shortly after each decennial census, Congress adjusts each state’s representation through a process called “apportionment.”

In 1964, the Supreme Court’s landmark “one person, one vote” decision ordered the states to use generally equal populations in drawing the boundaries of their congressional districts. However, the court at the time failed to precisely define “population” as meaning all people, or only eligible voters. In the past, the term has been taken to mean the total number of people living in the state or district as counted by the census.

In deciding the Evenwel v. Abbott case, the Supreme Court will be called on to more clearly define “population” for purposes of congressional representation. The plaintiffs in the case contend that the 2010 congressional redistricting plan adopted by the state of Texas violated their rights to equal representation under the Equal Protection Clause of the 14th Amendment. They claim that their rights to equal representation had been diluted because the state’s plan had counted everyone – not just eligible voters. As a result, claim the plaintiffs, eligible voters in some districts have more power than those in other districts.

A three-judge panel of the Fifth Circuit Court of Appeals held against the plaintiffs, finding that the Equal Protection Clause allows the states to apply total population when drawing their congressional districts. Once again, a 4-4 tie vote by the Supreme Court would allow the lower court’s decision to stand, but without affecting apportionment practices in other states.