As Justice Scalia observed, the Court in Coleman v. Miller was "equally divided" on one of the questions in the case, though not on the standing question, where the vote was five (three plus two) to four. I quote from a work in progress (by me), with apologies for the sometimes telegraphic nature of the phrasings:
How could a Court
consisting of nine Justices, all of whom cast votes on the other issues in the
case, be equally divided? A note in the Yale
Law Journal on the case had the title, “Sawing a Justice in Half,” and
wondered whether it was “possible to saw a Justice in half during a conference
and have him walk away whole?”[1]
According to
Justice Frankfurter, the justices realized that their three-to-two-to-four
division created a problem only late in the deliberations. Justices Butler and
McReynolds had seen no need to cast votes on any other than the length-of-time
issue, which was sufficient to justify a reversal. As the divisions within the
Court appeared, so did the need to figure out how to write a judgment. Justice
Butler apparently went along with the Chief Justice on the lieutenant-governor
issue. Black and his colleagues did not. The majority vote on standing may have
put them under some pressure, but not enough. Black’s opinion relied on a
different doctrine of nonjusticiability, the political questions doctrine, and
his analysis was only slightly different from Hughes’s. But, Hughes‘s draft
opinion dealt with the lieutenant governor issue squarely on the merits, and it
is difficult to see how he could have done otherwise.[2] Black and his colleagues
might have been compelled to say something about the substantive issues, but
only to the extent that they could dispose of them by invoking a justiciability
doctrine. They would not go so far as to rule on the merits of one of the
substantive issues.
By this time,
though, it was late in the Term – the decision was announced on June 5, 1939 –
and the irascible Justice McReynolds had left for his vacation. As Frankfurter
put it, “nobody was going to try and call him back – he would
have told them, frankly, ‘Go to hell.’ He wouldn’t have come back.” Concluding
that McReynolds’s vote on this single issue was not needed to enable the Court
to issue a judgment, Hughes decided to announce an equal division.[3]
[1]
Id. at 447; Note, “Sawing a Justice in Half,” Yale Law Journal 48 (--- 1939):
1455-58, at p. 1458. Bennett Boskey attributes the note to Yale Law professor
Harry Shulman, “Recollections of West Virginia State Board of Education v.
Barnette,” St. John’s Law Review 81 (--- 2007): 755- , at p. 787 (comment by
Bennett Boskey).
[2]
A copy of Hughes’s draft, with the section on the lieutenant-governor issue, is
in Hugo Black Papers, Manuscript Division, Library of Congress, box 256, folder
Coleman v. Miller.
[3]
“Recollections of West Virginia State Board of Education v. Barnette,” note ---
above, p. 787 (comment by Bennett Boskey).