Block on Trump's Asylum Ban Upheld by Supreme Court
U.S. Supreme Court Justice Stephen Breyer broke his collarbone over the Memorial Day long weekend as he was riding his bike in Cambridge, Massachusetts.
The Associated Press reports that the seventy-two year old Judge is no stranger to bike accidents. In fact, his 1993 bike accident was far worse, when he punctured a lung and suffered broken ribs after being hit by a car while riding across Harvard Square.
Justice Breyer is no spring chicken; but at age seventy-two, he isn't the oldest judge on the high court, either. Therefore, it's very foreseeable that a Supreme Court Justice could be absent for health-related reasons. Let's not forget that judges also recuse themselves in cases where conflicts of interest arise. So in such an event, what happens if a judge is out of commission and the remaining U.S. Supreme Court judges are deadlocked in a decision?
Slate examined this question several years back, in the Rehnquist days. According to the report Justice Rehnquist was working from home back in 2004, when he was recovering from a tracheotomy. During the time of his recuperation, Justice Rehnquist was fully allowed to cast a vote in upcoming cases, despite the fact that the wouldn't necessarily be fully present to hear oral arguments. In lieu of hearing the oral arguments, Justice Rehnquist relied on transcripts and written briefings.
Of course, as Slate writes, this was a unique case as typical practice would preclude a Justice from deciding on a case if that particular Justice had not heard the oral arguments. Nevertheless, perhaps in extenuating circumstances, such an exception to the customary practice is merited.
In the case of a 4-4 tie, the split decision would likely uphold the lower court decision. The U.S. Supreme Court would issue a per curiam decision. However, a deadlocked decision will not set precedent.
Of course, the absence of one judge on the current Supreme Court will likely be a fairly common occurrence, with Justice Elena Kagan recusing herself from so many cases.