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What Happens When a Supreme Court Justice Dies?

The nine Justices of the U.S. Supreme Court (or SCOTUS) wield substantial influence over the law. The "High Court," as it's often called, interprets the Constitution and serves as the final appellate court for federal cases and state cases involving federal issues. Since they are appointed for life and typically serve well into their advanced years, it is not uncommon for a Justice to die while on the bench.

But what exactly happens when a Supreme Court Justice dies or leaves unexpectedly? More specifically, how is the Justice replaced and what happens with cases already in progress but still undecided? The following is an overview of how the vacancy is filled and pending cases are decided after the death of a Supreme Court Justice.

Filling the Vacancy After a Supreme Court Justice Dies

The President of the United States has the sole authority to make appointments to the Supreme Court and the Senate has the authority to either confirm or reject the President's nomination, as spelled out in Article II, Section 2 of the Constitution. A nominee also may withdraw from the nomination, typically when Senate confirmation seems unlikely.

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

  1. President selects a nominee, who is then referred to the Senate Judiciary Committee.
  2. Judiciary Committee vets the nominee's qualifications through background checks and research.
  3. Judiciary Committee holds a hearing; witness testimony is presented and the nominee is asked a wide range of questions.
  4. Judiciary Committee chooses whether to submit the nominee to the full Senate for a confirmation vote, giving the nominee a favorable or unfavorable recommendation (or no recommendation at all).
  5. Once submitted to the full Senate, Senators in opposition to the nomination may use procedural tactics to delay or derail the process (such as a filibuster).
  6. Senate debates the nomination, with 60 votes needed for cloture (to end debate and move onto a confirmation vote).
  7. Senate votes on the nomination, with a majority (51) needed for confirmation.


Unfinished Business: Pending Supreme Court Cases

Supreme Court Justices must actively be serving at the time an opinion is made public in order for their votes to count. This means that a Justice who has already heard oral arguments, made a decision on the matter, or even wrote the majority opinion cannot cast a vote in the final decision if he or she dies or leaves the bench before it is announced. These pending cases still may be decided, since U.S. Code states that six Supreme Court Justices constitute a quorum, but the vacancy no doubt impacts the rulings of closely divided courts.

The Court may also be shorthanded due to a short-term illness or recusal (such as when a conflict of interests arises), not just when a vacancy arises from death, retirement, or resignation.

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

  1. Try to rule on different grounds in order to secure a majority
  2. Affirm (the lower court decision) by an equally divided Court; as if the case never appeared before the Court
  3. Argue the case again in the future (near term, if feasible)


An Equally Divided Court: Historical Examples

Courts typically go with the option of rearguing the case. The Court may feel obligated to do so for cases in which there is confusion among the lower courts, or issues that are otherwise deemed important and ready to be addressed. Those affirmed by an equally divided Court often are done so through what is known as a per curiam opinion.

At the start of the 1954 term, for example, Justice Robert Jackson died suddenly of a heart attack, leaving the Court with eight Justices for five months. Three of the cases were reheard after Justice John Marshall Harlan II was confirmed later in the term, including Indian Towing Co. v. United States, which the Court initially affirmed by an equally divided court. Two of the cases ended in 5-4 decision after they were reargued.

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

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