Sunday, December 25, 2011

A Holiday Puzzle for Supreme Court Trivia Fans

Mark Tushnet

There's (at least) one Supreme Court case in which nine justices participated, and the Court announced that it was equally divided. Name the case and explain the outcome. (The case involved multiple issues, but the puzzle doesn't arise, at least directly, from one of the standard paradoxes of aggregation of votes on multiple issues.)

I don't know how to enable comments, but I'll post the first correct answer I receive.


You're probably thinking of Connecticut v Johnson, 460 US 73 (1983), in which an equally divided court affirmed the judgment of the Supreme Court of Connecticut, with Justice Stevens concurring. The affirming plurality would dismiss certain convictions because the trial court's jury instructions were erroneous and not harmless. Justice Stevens would dismiss the writ as improvidently granted—as the harmless error issue raised no federal question—but agreed to affirm so that judgment could be entered.

Another option would be US v Jordan, 342 US 911 (1952), in which an equally divided court affirmed the judgment of the Sixth Circuit, with Justice Frankfurter concluding separately that the writ should be dismissed as improvidently granted. Given your prompt, however, I suspect Jordan isn't the case you're thinking of.

The case I have in mind is more puzzling than these. You can tell from the printed opinions what happened in these cases, but not in the one I have in mind. When I described the case to my wife, she said that one of the justices must have been of two minds about the case. And a law review comment wondered (paraphrasing to make locating the source more difficult) whether one of the justices had been split in two inside the conference room and reassembled before the justices emerged.

One final clue: "My" case has been cited by the Supreme Court 365 times, according to Lexis. (Johnson, which was part of Justice Frankfurter's campaign against hearing fact-specific tort cases, has never been cited by the Court.) The most recent citation of my case was in 2011, more than seventy years after it was decided.


Dealt with the second attempt to ratify the Child Labor Amendment in Kansas.

The Supreme Court held the question of a second attempt to ratify after a span of years was a political question.

It evenly split on the judiciability of the lieutenant governor splitting a tie in the state senate, the question being if he was a member of the "legislature" for Art. V purposes.

Query if a justice might have disqualified himself on this specific issue for some reason, such as knowing the person or something.

Joe has the right case. The explanation is different(and to the extent that I've found evidence, it's not conclusive). Frankfurter told an anecdote to the effect that the Justices thought until late in the writing that they would be able to dispose of the case without reaching a conclusion on the lieutenant governor issue. But, right at the end, they realized that they had to say something about that issue. But,McReynolds had left for his vacation by then, and no one wanted to try to get him back. So, Hughes let the issue be decided by an evenly divided Court. (The problem with this is that it's hard to figure out why they thought they didn't have to reach that issue when they were reaching two others on the merits, with four justices acceding to Hughes's views on those issues, but apparently unwilling to do so on this one.)

This was a great post for a holiday change of pace, i.e., not too constitutionally adversarial. I hope Prof. Tushnet posts more frequently, however, on some of the adversarial aspects. In another thread at this Blog, I referenced the Winter 2011 issue of Constitutional Commentary with its Symposium on "The United States Constitution (rev. ed.) How would you rewrite the United States Constitution?" which includes Prof. Tushnet's submission "Abolishing Judicial Review" which focuses on the role of the Court with acts of Congress. Girardeau Spann's submission "Constitutional Hypocrisy" took a broader approach on abolishing judicial review. With the ongoing battles between originalists and non-originalist, I find the subject of judicial review interesting as it is not specified in Article III or elsewhere in the Constitution. Prof. Spann states in his Introduction: "There are, of course, practical problems entailed in 'rewriting' a Constitution to eliminate a provision that never actually appears in the Constitution ...." (p.558) And of course judicial review leads to judicial supremacy of the Court over the President and Congress even though Article III and the rest of the Constitution do not specifically provide for such supremacy.

So I hope Prof. Tushnet, and others, will post on judicial review/supremacy from time to time at this Blog, whether with or without accommodating comments.

Taking the FF explanation at face value, McReynolds voiced his opinion on that other issue (dissenting) while in effect being absent for the settling of the l.g. issue (so the "nine justices participated" is a bit of a trick question).

It is a curious result especially since the amendment was only ratified by 28 states, even counting Kansas. I don't see why, except for perhaps Hughes efficiency, they could have not delayed the decision until a full court was there.

A bit of trivia mixed with trying to pull one over perhaps.

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Bennett Boskey, who was a Justice Reed law clerk (1940-41) and then CJ Stone's chief law clerk (1941-43), mentioned the Coleman decision as follows in 2006: "Sometimes [CJ] Hughes would accept things in his opinions, in order to get an opinion that became
the opinion of the Court with the maximum number of Justices, that looked absolutely unbelievable. Some looked as if they were in
conflict with something else in his opinion. But that didn’t bother Hughes as much as the problem of getting a united opinion of the Court. There’s one opinion of Hughes, for example, in a voting rights case in which nine Justices voted, on which Hughes said as to a particular issue, the Court 'is equally divided.' Harry Shulman, who was then the Dean of the Yale Law School, wrote an article about this entitled Sawing a Justice in Half." That article, to which Mark referred, is Note, Sawing a Justice in Half, 48 YALE L.J. 1455 (1939).

Thanks Mr. Barrett for the cite.

Marty Lederman has a new post up and refuses to have comments. I went to Opinio Juris, where he refers us for extended discussion, and the second post has one comment and then it seems comments were cut off.

The matter is complex and deserves some discussion [and back in the day, we would have some here] but Mr. Lederman unfortunately is taking the Balkin approach of talking to himself.

I'm sorry for the non-germane post and happy new year and thanks to those here who still finds it productive to allow comments.

The cite for Boskey's comment, which I quoted above, is "Recollections of West Virginia State Board of Education v. Barnette," 81 St. John's Law Review 755, 786-87 (Fall 2007).

The second article cited is also interesting and has this ancedote:

I later found out through Felix Frankfurter what had really happened in that case. Justice McReynolds, who was a very ornery Justice, used to go off a little bit early before the end of the Term on vacation. And in this particular case, the point involved was a new point that came up after Justice McReynolds had gone off on vacation. And nobody was going to try and call him back - he would have told them, frankly, "Go to hell." He wouldn't have come back. So Hughes just said, "On this issue, the Court is evenly divided."

But, the LG issue was addressed by the state court, so was not really "new," except perhaps that the justices didn't think they had to decide the issue or forgot about it.

Another tidbit in the law review article is the interesting story about how the lower court in the second flag salute case in effect predicted the Supreme Court would change its mind on the issue.

Thank you for your great post.I also like Mark Tushnats comment.I think attorney cleveland tn is always best.

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