Possible Impacts of a Split Supreme Court

On Friday, September 18, Supreme Court Justice Ruth Bader Ginsberg lost her battle with pancreatic cancer. Justice Ginsberg served on the US Supreme Court since 1993, and her death – less than seven weeks before the election – opens up a lot of questions over the future of the court. 

Supreme Court Case Implications

With Chief Justice Roberts siding with the liberal leaning justices at times, the US Supreme Court is now widely seen as split 50/50 between conservative and liberal justices. Until another justice is appointed and the balance of the court shifts one direction or the other, the split court could impact the outcome of many cases.

One such case is California v. Texas, which challenges whether the ACA is constitutional with a mandate that doesn’t include a penalty and is scheduled for oral arguments in mid-November. If the Court delivers a tie verdict then the verdict of the lower court stands. In this case it’s the 5th Circuit, which affirmed the lower court’s decision that the ACA is unconstitutional without the penalty. The 5th Circuit’s decision remanded the case to the lower court to determine how this finding impacts other provisions in the ACA. It’s unclear how this bifurcation will unfold following a deadlock at the Supreme Court level.

Potential Effects on the Election

Another situation worth watching is the upcoming presidential election in November. It is predicted that this election, given the many unusual circumstances, is going to be highly litigated. To be elected president, the winning candidate has to receive at least 270 Electoral College votes, but as maps, pundits and pollsters have pointed out, there is a chance that this won’t happen.

If there isn’t a clear winner, disputes over the election could end up in front of the Supreme Court, as they did in 2000 with Bush v. Gore. In Bush v. Gore the Supreme Court ended the recount vote in Florida on December 12, because the Electoral College was having its vote on December 14, ruling that the prior count in Florida for Bush needed to stand. With the 2000 decision in Bush v. Gore giving Florida to Bush, the Electoral College was able to give him more than the 270 votes needed to win. With a split Supreme Court, the situation might have unfolded differently.

If the Electoral College is not able to give one of the candidates the 270 votes required, the decision will go to the House and Senate to be settled in a contingent election. Having only had three contingent elections in our history, there isn’t much precedent to rely on, which means that the Supreme Court might again have to step in and provide guidance. That might be a challenge for a split court. If there is no resolution by noon on January 20, the Presidential Succession Act may apply, placing the Speaker of the House under the new Congress in that role.

Although no one can say for sure how things will turn out, we will continue to explore the implications of the situation as it evolves. Luckily for us, NFP’s own Suzanne Spradley, chief compliance officer, and Chase Cannon, VP, Benefits Compliance and Counsel, have dedicated the second episode of the Election Series on NFP’s Insights from the Experts Podcast to a thorough discussion of the nomination process and the impact that an open seat could have on the election and on cases currently before the Court. Listen to their fascinating discussion here.