Suppose that the Supreme Court has finished hearing oral arguments to a case, the Justices are in the process of writing up their opinions, and one of them suddenly dies (or resigns, or becomes incapacitated) before the opinion is officially made public. Does his/her vote still count?

If not, and the surviving Justices are split 4-4, what will the Court do? Affirm the lower court decision? Reargue the case?


1 Answer 1


This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link.

Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe.

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