Amid the ongoing talk about how the Supreme Court is faring with one vacancy, there might be a new wave of congeniality among the eight Justices, perhaps aimed at getting some things done that otherwise would not. For the second time in recent weeks, a Justice cast a vote that otherwise might not have been justified, but did so only as “a courtesy” to colleagues.
This time, it had a good deal more significance: that courtesy vote, cast by Chief Justice John G. Roberts, Jr., close to midnight Thursday, temporarily spared the life of an Alabama death row inmate. The Chief Justice candidly conceded that he was opposed to doing so but nevertheless went ahead.
Four of his colleagues, he noted, had voted to delay the execution of Thomas D. Arthur (scheduled for 6 a.m. Friday). They had done so, he said, even though “this case does not merit the Court’s review,” and did not satisfy the “ordinary criteria” for a delay order. To give those four other Justices “the opportunity to more fully consider the suitability of this case for review,” he joined in voting for delay “as a courtesy.” (When the Court takes up the case later, to decide whether to hear and decide the death-row inmate’s challenge, it would take only four votes to grant that review.)
In August, Justice Stephen G. Breyer was the accommodating member of the Court when it chose to delay a lower court ruling dealing with the right of a transgender boy in Virginia to use the boys’ restroom at his high school. Breyer, like Roberts, said he was casting a vote for postponement as “a courtesy.”
It is almost certainly not true that the Court’s members will now routinely vote against their own perceptions every time there is a controversial case in which delay is sought, but that leaves open the question of why they have done so in these two instances.
Here is a bit of background that begins to suggest some explanations. The Court has had only eight members since last February, when Justice Antonin Scalia died. A nominee to succeed him has been left waiting since March, with no action in the Senate even to consider that nominee, Circuit Judge Merrick B. Garland.
Whether the Court has nine or eight Justices, it takes the votes of a majority — five in both situations — to postpone a lower court ruling that is being challenged (technically, to grant what is called a “stay”).
If a request for a postponement is more or less routine, because it does not raise any potentially significant issue, it is easy to get five Justices to do so when such a matter is referred to the full Court. A single Justice can act alone, and often does, when the delay comes in a case of little consequence or difficulty. The more difficult requests are referred by a single Justice to all of the others for action.
With an eight-member Court, there is always the risk of a 4-to-4 split if the request comes in a case that raises an issue that is likely to be controversial among the Justices. In that circumstance, the Justices’ deep split in ideological perceptions often comes forth, with four on one side, and four on the other.
The legal reality is that nothing of genuine impoftance gets done in the event of a 4-to-4 split. That simply has the effect of giving the last word in a case to the lower court, without setting any precedent.
In a death penalty case, an even split almost always will mean that a stay request will be denied, because such requests are most often made by the convicted individual after being denied by the lower court. Thus, 4-to-4 equals execution for that inmate.
It is has not been uncommon, in recent years, for the Court’s four more liberal members to be in favor of delaying executions when an inmate’s appeal seems to have some genuine legal merit. They are inclined to see merit where, often, their conservative colleagues do not.
Back, then, to the casting of “courtesy” votes. There is nothing in the Court’s rules or customs that prohibits such a vote, even though the Justice casting such a vote does not believe it is justified.
But, with one Justice short, this philosophically divided Court realizes full well that it is harder for either bloc of four to gather a fifth vote to make a majority than it would be, of course, with nine members.
It is well to remember, though, that what has been at stake in the two recent instances of a “courtesy” vote, is simply the question of a temporary delay of a lower court decision that will be coming up later for more meaningful action by the Court.
Those “courtesy” votes do not settle anything else, and, in particular, they do not commit the Justice who cast such a vote to do that again when the Court is deciding the merits of a case. Courtesy does not extend to actually voting against one’s developed view on how the actual legal dispute should come out.
At a minimum, though. those two acts of courtesy may well send a signal that the Court is being forced to do at least some things differently because it only has eight members. That might well be a signal aimed across First Street at the Senate, and in particular at Senate Republican leaders who have opted to keep the Scalia seat vacant — for the last eight months, and, very likely, longer.
As a long-term proposition, the Court could not count on courtesy votes to get done the hardest part of its work — deciding deeply controversial cases.