Recusals and the 'Problem' of an Equally Divided Supreme Court
Wasby, Stephen L., Justice System Journal
Ryan Black and Lee Epstein, "Recusals and the 'Problem' of an Equally Divided Supreme Court," Journal of Appellate Practice and Process 1 (2005): 75-99.
In this article, political scientists Black and Epstein looked at the situation in the United States Supreme Court when a justice does not participate because of a vacancy, illness, or recusal, leaving only eight justices voting. They looked at the frequency of even divisions in such situations, that is, those cases in which the disposition is "affirmed by an equally divided Court," and found that it occurs only rarely. They noted the declining number of "discretionary" recusals from the Vinson Court to the present, and speculated about that small number. This article is helpful in complementing the two articles in the present issue of this Journal, which deal with aspects of the practice in the states when a judge is absent, with other judges being "substituted"-a practice quite different from that in the Supreme Court, where the vacancy remains. …