Haynsworth, Carswell, and Blackmun
The oral argument in Maxwell v. Bishop had been held in March 1969. Normally, the Court takes a preliminary vote shortly after a case is argued. Then the majority opinion and concurrences and dissents, if any, are written and circulated among the Justices for comment and final assent. Because Maxwell's case was complex, as well as consequential, no decision was expected until mid-June just before the Court cleared its docket and adjourned for the summer. But on May 14, 1969, an event took place that would postpone Supreme Court resolution of the issues involved in the case for two years: Justice Abe Fortas, one of the men whom LDF lawyers hoped would vote to require a split verdict or sentencing standards, resigned from the Court suddenly after conflict of interest charges were raised about payments he had received while a Justice from the family foundation of Louis G. Wolfson, an ex-client and convicted stock swindler.
The remaining eight Justices could have decided the case. If the eight divided evenly, Maxwell would lose his appeal because the effect of an evenly split vote is always to affirm the decision of the lower court.1 In that event, the Court would not write an opinion and the case would not be considered a precedent. The eight Justices, however, were