The editors of the Washington Post are concerned that in some cases in which the norms of judicial ethics require recusal of a Supreme Court justice because of his stock holdings, there is an increased chance of a 4-4 tie among the justices still participating. This leaves in place the lower court ruling being reviewed, but with no national effect on the legal questions that prompted the review in the first place.

I am not as concerned about this problem as the Post is, but the solution seems quite simple. As the paper’s editors note, on the appellate courts a judge recusing himself from a panel can be replaced, which isn’t possible on the Supreme Court. But what can be done is a solution by subtraction. Whenever one justice informs his colleagues that he will recuse himself from a case, the remaining eight justices can determine, by lot, which of them will join him on the sidelines, making it a seven-member court that cannot deadlock in a tie. Maybe they can draw straws. Short straw sits it out.

No, I’m not kidding.