Home » Advice & Consent 06: What does a 4-4 Court mean?

Advice & Consent 06: What does a 4-4 Court mean?


What does a 4-4 Court mean?



  • Fisher v. University of Texas, the affirmative action case.
  • Whole Woman’s Health v. Hellerstedt (abortion in Texas)
  • United States v. Texas (immigration DAPA/DACA) (what is it with Texas?)
  • Criminal procedure cases–Supreme Court rejecting a hem wholesale so far
  • Class action cases–ditto


  • Maybe not often are 4-4s issued, but even in cases of a fully staffed SCOTUS recusals can cause issues. I
  • Issues are being taken up at the Court and questions being asked.
  • Justices coming out of the gate saying “no big deal; we got this” to shore up confidence in the Supreme Court
  • Justice Kagan saying that they’re trying to avoid deadlocks (Supreme Court is Working Hard to Avoid Deadlocks, Kagan Says) trying to only pull cases where they won’t be closely split; so decisions all the way through – from cert to final judgement are implicated
  • Zubik supplemental briefing
  • How long will this will go on?
  • Examples of how what the Court does or does not do actually impact a number of issues: business, 4th Amendment issues – local law enforcement


  • On a case-by-case basis, it can swing either way substantively depending on your point of view of the Court of Appeals holding.
  • Untenable in the medium and long term because it hampers the Court from its role in arbitrating Circuit splits.
  • This is not ideal and is fixable based on decades of precedent. If we have a vacancy, the President nominates and the Senate considers and votes. Period.