Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

What Happens When a Supreme Court Justice Dies?

The nine Justices of the Supreme Court of the United States wield substantial influence over the law. Referred to as the "High Court," the Court interprets the Constitution and serves as the final appellate court for federal government and state cases involving federal issues. 

Since they are appointed for life and serve well into their advanced years, it is common for a Justice to pass away while on the bench. This leads to important questions, including: 

  • What exactly happens when a U.S. Supreme Court Justice dies or leaves unexpectedly? 
  • How does the court system replace a Justice?
  • What happens with cases already in progress but still undecided, such as those requiring an oral argument or those in the original jurisdiction of the Court?

The following is an overview of how the judicial system fills the vacancy left by a Justice who passed away. It also discusses what happens to the pending cases after the death of a Supreme Court Justice, including the cases where a majority opinion has not yet been issued.

How Is Vacancy Filled After a Supreme Court Justice Dies?

The filling of the vacancy arises once the sitting president nominates a replacement. The president delivers a message to the Senate Judiciary Committee indicating their nomination. The Senate Judiciary Committee then conducts a review. The committee often holds hearings to assess the nominee, who sometimes is an associate justice from a lower court.

The Judiciary Committee can recommend a candidate to the full Senate. Once the full Senate approves the Supreme Court Justice nominee, the candidate becomes a Supreme Court Justice. Article II, Section 2 of the U.S. Constitution spells out this rule.

A nominee also may withdraw from the nomination. This is typical when Senate confirmation seems destined to fail.

The following is a summary of the nomination process after a Supreme Court Justice dies or leaves the bench:

  1. The president selects a nominee, who is then referred to the Senate Judiciary Committee.
  2. The Judiciary Committee vets the nominee's qualifications through background checks and research.
  3. Judiciary Committee holds a hearing. The Committee gathers witness testimony. These witnesses often give insights about the nominees, experience, background, and suitability for the position. The witnesses comprise professionals from different backgrounds. For instance, law school professors, federal judges, lawyers, and representatives from the bar association. There can also be individuals who know the nominee, such as community members or their friends, who can testify about their personal qualities and character. The Committee also asks the nominee a wide range of questions.
  4. The Judiciary Committee chooses whether to submit the nominee to the full Senate for a confirmation vote. They will either give the nominee a favorable recommendation, an unfavorable recommendation, or no recommendation at all.
  5. Senators opposing the nomination may use procedural tactics to delay or derail the process, such as a such as a filibuster.
  6. Once submitted to the full Senate, they schedule the nominee for debate. During this time, Senators talk about the merits of the nominee and the concerns that they might have. If they want to end the discussion and proceed to vote for or against the nomination, they can file a cloture motion.
  7. Supreme Court nominations only need a simple majority to file cloture and end the debate. This means the Senate only needs 51 votes to end the debate compared to the previous requirement of 60 votes. This change in the rules was established in 2017.
  8. After the debate ends, the Senate votes on the nomination. The nominee must secure a majority vote to confirm the Supreme Court Justice nomination. If there are 100 Senators present, the nominee needs at least 51 votes. If fewer Senators are present, then most of those present are enough to confirm the nomination.

What Happens to the Pending Supreme Court Cases?

It is essential to know that for a vote to count, the Supreme Court Justice should be in service when the decision goes public. If the Justice took part in the case by deciding on the outcome, listening to the arguments, or writing their opinion, they should be in service. These contributions will not count if they resign or pass away before the announcement of the Supreme Court decision to the public.

If a Supreme Court Justice resigns, retires, or dies after making the decision public, their decision remains valid. The main factor to consider is whether the court released the decision to the case while the Justice still serves on the highest court. 

Once the decision is publicly announced, it stands as the Supreme Court ruling. This includes the opinions and votes of the Justices who made that decision, even if the Justice dies, retires, or resigns shortly after that.

Other than vacancy arising from death, retirement, or resignation, the Court may also lack a Supreme Court Justice. Examples include short-term illness or recusal, such as when a conflict of interest arises.

When there is a tie, the Court has the following options:

  • Try to rule on different grounds to secure a majority
  • Affirm the decision of the lower court by an equally divided Court as if the case never appeared before the Court
  • Argue the case again in the near-future term, if possible

Historical Examples

Courts often go with the option of rearguing the case. Rearguing a case means that the Court refers the case for dispute, debate, or presentation for a second time. The Court may feel obligated to do so in cases of confusion among the lower courts. Issues deemed essential and ready for resolution also experience this. 

An equally divided Court often affirms cases through what is known as a per curiam opinion.

At the start of the 1954 term, Justice Robert Jackson died of a heart attack, leaving the Court with eight Justices for five months. Three cases were reheard after Justice John Marshall Harlan II was later confirmed. This included Indian Towing Co. v. United States, which the Court had affirmed by an equally divided court. After undergoing a reargument, two cases resulted in a 5-4 decision.

In example from 1988, the Court reheard four cases after Justice Kennedy joined, three of which ended in 5-4 decisions.

In 2016, Justice Antonin Scalia's death impacted the composition of the Supreme Court. It led the Court to operate with only eight justices, four conservative and four liberal. The American jurist Neil McGill Gorsuch took a seat in April 2017.

Role of the Administrative Office of the Supreme Court

The Administrative Office of the U.S. Courts plays a vital role in managing the federal government judiciary's affairs, including the United States's Supreme Court. They maintain the efficiency, transparency, and proper functioning of the federal court system.

Seek Legal Advice

If you have questions or concerns about the legal system, including matters that involve the U.S. Supreme Court, the guidance of a litigation and appeals lawyer is helpful. They can give you detailed information about the intricacies of the U.S. Supreme Court proceedings, starting from how Supreme Court Justices are replaced to how the court handles pending cases. 

Whether you are involved in a pending case with the Supreme Court or need legal advice on the possible legal implications of the death or resignation of a Supreme Court Justice, consider speaking with a litigation and appeals attorney. They can provide strategic insight and the representation you need to navigate these laws.

Was this helpful?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:

Next Step Search and Browse

Contact a qualified attorney.

Begin typing to search, use arrow keys to navigate, use enter to select
Copied to clipboard

Find a Lawyer

More Options