The Detrimental Effects of a Divided Court

By Nicholas Parsons

Nicholas Parsons is a Sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics.
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After Antonin Scalia’s passing in February 2016, the United States Supreme Court was thrust into a unique position. The court is currently even in justice count, with the justices themselves fairly balanced between Democratic and Republican ideologies. At first glance, this balance appears to be optimal for an objective court of law; but upon a more skeptical look, it’s found that this balance has many unintended consequences. With such a balanced court, many partisan issues can no longer be decided by majority. Since February, the Supreme Court has dealt with issues of extreme importance, including immigration, contraception, public unions, and affirmative action. With issues as salient as these, coming to a definitive decision is a necessity in order to ensure justice in the interpretation and validation of laws. To rectify this issue, the court has had to respond in a variety of nuanced and contentious ways.

The first issue after this February that suffered a split opinion, Hawkins v. Community Bank of Raymore, was a case dealing with the potential discrimination of two married women under the Equal Credit Opportunity Act. [1] The 4-4 opinion of this case was a per curiam opinion: an opinion made in the name of the court as a whole, often done when the court is tied on an issue. Here, the opinion dealt was a sentence-long decision affirming the judgment of the lower court that initially presided over the case. [2] While per curiam decisions don’t act as precedents for future cases, the decision itself became a precedent for more vague and dissatisfying split decisions to come.

The next big issue that reached a split decision referenced public unions, in the case of Friedrichs v. California Teachers Association this March. The case dealt with teachers in California who challenged the ability of teaching unions to charge a “fair share service fee” to teachers who refuse to join the union. [3] Once again, the judgement was a per curiam opinion that affirmed the opinion given by the lower court, allowing the unions to continue to charge this fee. [4] In this case, the absence of a ninth justice worked in favor of the unions. Chances are, however, because the per curiam opinion avoids a legal precedent, this issue will need to be brought back up by the Supreme Court in the future.

On the issue of President Obama’s recent immigration program, “Deferred Action for Parents of Americans and Lawful Permanent Residents”, the court yet again issued a per curiam opinion, effectively shooting down Obama’s immigration initiative. The program would have made it easier for undocumented immigrants to become legal citizens. [5] This opinion, in the case of United States v. Texas, agreed with a lower court in Texas, which shot down the program. Once again, this decision did not establish a precedent that would affect future similar cases. However, this decision stopped history. In the words of President Obama, as a result of this case, the Court is “going to have the status quo frozen” in a way that can’t be rectified until the next presidential term [6]. Had there been an odd number of justices on the Supreme Court, a stance would have been made in terms of immigration. Instead, with this opinion, a stance isn’t even made on one side or the other of the issue. The Supreme Court is supposed to take the side that is best for the people. Instead, they’re stuck on the fence, with no decision made to either effect, and none to come until a similar case presents itself after the election.

Another response by the Supreme Court to  split-court decisions is to defer the case back to the lower court for further jurisdiction. This is what happened in Zubik v. Burwell, the case this year that dealt with religious groups which opposed providing insurance to females for contraception. Another per curiam opinion was issued, but not in affirmation of a lower court ruling. Instead, the Supreme Court remanded the judgement back down to the lower court, to reach a resolution between the parties involved. [7] While remanding a case is not rare under most circumstances, here the purpose of the remanding was likely to avoid a 4-4 decision like the ones before it. The interplay between religion and contraception is a controversial issue, and like the other per curiam opinions, it will likely need to be revisited once an odd justice count is restored. However, this case was arguably more successful than the previous ones, because a compromise was reached between both parties, rather than a steadfast affirmation of a lower court ruling.

Now, it must be noted that split decisions are not a common occurrence, even among Supreme Courts that have had eight presiding justices. Historically, eight justice courts have reached split decisions only in 7% of cases [8]. When these 7% of cases deal with contentious issues, however, the even number of justices becomes a problem. This is the first time since the Civil War that a Supreme Court justice seat will be left empty on the day of a presidential election [9]. As we have seen, split decisions function to forestall progress on the issues in question. Regardless of one’s political views, based on these recent court decisions it is clear that the number of justices needs to be changed in the very near future in order for the Supreme Court to once again make relevant decisions that take a definitive side on history.


[1] Chicago-Kent College of Law at Illinois Tech. "Hawkins v. Community Bank of Raymore." Oyez. https://www.oyez.org/cases/2015/14-520. (accessed October 04, 2016).
[2]Hawkins v. Community Bank of Raymore, 577 U.S. ____ (2016). https://www.supremecourt.gov/opinions/15pdf/14-520_d18f.pdf. (accessed October 04, 2016).
[3] Chicago-Kent College of Law at Illinois Tech. "Friedrichs v. California Teachers Association." Oyez. https://www.oyez.org/cases/2015/14-915. (accessed October 04, 2016).
[4]Friedrichs v. California Teachers Association, 578 U.S. ____ (2016). https://www.supremecourt.gov/opinions/15pdf/14-915_1bn2.pdf. (accessed October 04, 2016).
[5] United States v. Texas, 579 U.S. ____ (2016). https://www.supremecourt.gov/opinions/15pdf/15-674_jhlo.pdf. (accessed October 04, 2016).
[6] Liptak, Adam, and Michael. "Supreme Court Tie Blocks Obama Immigration Plan." The New York Times. June 23, 2016. http://www.nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html. (accessed October 04, 2016).
[7] Zubik v. Burwell, 578 U.S. ____ (2016). https://www.supremecourt.gov/opinions/15pdf/14-1418_8758.pdf. (accessed October 04, 2016).
​[8] Aufrichtig, Aliza. "Split Happens: Deadlocks Rarely Occur in the Supreme Court. But Why?" The Guardian. June 24, 2016. https://www.theguardian.com/law/2016/jun/24/us-supreme-court-split-decision-barack-obama-immigration. (accessed October 04, 2016).
[9] Reuters. "The U.S. Supreme Court Will Return with Only 8 Justices." Fortune The US Supreme Court Will Return with Only 8 Justices Comments. September 29, 2016. http://fortune.com/2016/09/30/us-supreme-court-justices/. (accessed October 04, 2016).

Flickr Photo Credit: Brian Barney

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.