Over at Rachel Maddow’s blog — I know, I know: “My one-stop shop for all penetrating legal analysis!” you’re thinking — Steve Benen runs through a few What if . . . ? scenarios following the death of Antonin Scalia, including this one:
What if Senate Republicans refuse to confirm a nominee, and in the fall there’s an election crisis along the lines of Bush v. Gore that results in a Supreme Court case? And the justices themselves are stuck in a 4-4 split?
Let’s jump off that bridge once we get to it.
This hypothetical has been popping up on Twitter, too, the obvious insinuation being that Republicans must, need to, have to confirm President Obama’s nominee — or they’ll be responsible for the Bush v. Gore-style constitutional crisis that follows when Donald Trump sues Bernie Sanders over hanging chads in Ohio come November.
But what would happen if no justice is confirmed is, in fact, simple. As when a justice recuses him- or herself, or when a justice is ill (as when, in 2004, Chief Justice Rehnquist from absent for a period of time following an operation), a split decision effectively upholds the ruling of the relevant lower court, the Supreme Court issues a per curiam decision (in the name of the court, not any individual justices, and traditionally brief: “The judgment is affirmed by an equally divided court.”), and the decision sets no precedent.
Had this happened in Bush v. Gore, then, the Supreme Court would have upheld the ruling of the Florida Supreme Court. In fact, the Supreme Court held 7-2 that the Florida court’s recount method was unconstitutional, and held 5-4 that no constitutionally valid recount was possible within the relevant timeframe. So, in 2000, an eight-justice court might (might) have led to a different result — if Florida had performed a recount, if that recount changed the state’s vote, etc.
In any event, though: no constitutional crisis is on the horizon. For this reason, at least.
(By the way: What will happen to split decisions in less urgent cases is not yet clear. At SCOTUSblog, Tom Goldstein notes that there is precedent for 4-4 cases being reargued once a new justice is confirmed.)