My understanding is the Supreme Court normally releases their rulings in bursts around the same time instead of releasing them as soon as the opinions are ready.

Consider a 5-4 ruling where a justice in the majority dies after the voting is finished and the opinion has been written, but before it has been released. Would their vote still count or would the case be considered a 4-4 draw?

3 Answers 3


Five years after I asked this question, apparently this exact scenario came up for one of the appeals courts and the Supreme Court has now definitively ruled that the vote of a deceased judge does not count if they die before the ruling is released.

From NBCNews:

The Supreme Court answered a question Monday that, surprisingly, hasn't been resolved before: If a judge dies after voting on a case but before the decision is announced, does the judge's vote count?


A footnote at the beginning of the appeals court decision said that Reinhardt "fully participated in this case and authored this opinion" and noted that voting by the judges was completed before he died.

But the Supreme Court said Monday it's "generally understood that a judge may change his or her position up to the very moment when a decision is released." In order for a vote to count, a judge must be actively serving on the court when a ruling is rendered. Holding otherwise would have "allowed a deceased judge to exercise the judicial power of the United States after his death."

And here is the link to the actual opinion.

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    Interesting! I'd heard about that case and the "fully participated" note, but hadn't realized the SCOTUS had taken it up. Thanks for coming back and updating the question!
    – Bobson
    Commented Feb 25, 2019 at 21:56

The Supreme Court has its own internal rules and does not make them public. Constitutionally there is no guidance, but I'm sure someone would look for precedent.

As such, the answer technically is that the Court itself would decide. While the Chief Justice may have more influence, the Court typically prefers to act by consensus rather than dictat, so my assumption is that they would meet in chamber and decide.

5-4 decisions are not as common as you might think- SCOTUS blog's 2013-2014 stats pack showed it was only 14% of them this year, and Anthony Kennedy was in the 5 100% of the time. As such, it would pretty much be Kennedy we are talking about, and he is still young.

If a 5-4 decision were turned into a 4-4 one, the court can choose to hold it over and rehear the case when a successor is named. Roe v. Wade, for example, was originally heard in 1971, and then re-argued in 1972, at Blackmun's request. after two new justices were sworn in. As Wikipedia states:

Following a first round of arguments, all seven Justices tentatively agreed that the law should be struck down, but for varying reasons.[19] Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness.[20] Justices Rehnquist and Powell joined the Supreme Court too late to hear the first round of arguments. Additionally, Blackmun felt that his opinion was an inadequate reflection of his liberal colleagues' opinions.[21] In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order (he and the other liberal Justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.[22][23] The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Jay Floyd for Texas.

My guess, based on the collegiality of the court and it's love of consensus is that they would most likely do something like that if the issue were particularly contentious - but there is nothing that would require them to do so. It strikes me that the court could just as likely choose to honor a written opinion as a legacy to a justice who wrote it.

Finally, bear in mind that stare decisis (precedent) is important to the court, but not iron clad. As justices die, even 6-3 and 7-2 decisions can eventually be overturned. A 4-4 decision that held is thus just more likely to be challenged more quickly as things change on the ground.

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    "As such, it would pretty much be Kennedy we are talking about, and he is still young." - Um, you do realize that a 5-4 decision does take 4 other votes besides Kennedey's? It could be any of them.
    – D M
    Commented Feb 25, 2019 at 23:02

The highly regarded opinions of the Supreme Court are given after the court has made an informal decision on the case and only reflect why those Justices voted that way. They can change their minds and votes oft are changed because something or someone ticked them off in the course of the opinion being written. This would be of course the reason why Justice Scalia frequently writes his own "castigating" opinions. He is very uncompromising and as such is not asked to write the Bench Opinion that often (as far as I can tell). In the case of 6-4 decisions it is told that they sometimes become 7-3 in order for the more senior voter in the minority to soften the Bench Opinion.

  1. If the deceased Justice was writing a Bench Opinion (or a dissenting or concurring) there would be little doubt that they would so change their original vote so the opion may be valid or it may be discarded and rewritten by a new Justice. I believe in the shrewdness of the Justices. They would not so discard the final work of one of the greatest minds in American History. Moreover the opinions are very often released at the last possible moment and there might not be enough time for a new opionion from the majority or minority.

  2. If the deceased Justice was not writing the opion there would be the possibility that the Justice might so change their mind and their "sign on" vote to the opion to majority or descent would be in question.

The first case is obvious honour the legacy of the fallen. The second is a legal ethics question which I do not know the answer to but I think Affable does an ok job attempting answering.

In either case 5-4 decisions are law but they set a low precedent. Its easier to change with newer Supreme Courts than a 9-0 decision. In addition to the low burden of the 5-4 president there would also be the doubt caused by the death which would make the decision even more unstable and increase the value of the decedent.

  • 2
    "7-3" and "6-4" decisions?
    – Jasper
    Commented Jul 14, 2018 at 23:24

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