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ARTICLE SUPREME STALEMATES: CHALICES, JACK-O’-LANTERNS, AND OTHER STATE HIGH COURT TIEBREAKERS DON R. WILLETT† High courts ! high stakes " high drama. But not always. As the Supreme Court’s #$%& Term showed, some bombshell cases 'zzle rather than dazzle. During the fourteen months it took for Justice Antonin Scalia’s successor to arrive at One First Street, some of the Term’s most controversial—and consequential—cases divided (–(. And when the highest court in the land deadlocks, it issues a dry, nine-word order: “The judgment is a)rmed by an equally divided Court.” Supreme stalemate. That anticlimactic result isn’t inevitable. Indeed, thirty-three states reject SCOTUS’s “ties happen” approach, using various substitute-justice mechanisms to avert or break legal logjams when their high court is shorthanded. The anti-stalemate states di*er in four important ways: (%) when 'll-in appointments are made; (#) who can be appointed; (+) who does the appointing; and (() how much discretion the appointer has. In Louisiana, for example, the court clerk randomly plucks a potentially tiebreaking justice’s name, pre-deadlock, from a plastic Halloween Jack- o’-Lantern. In Texas, the Governor handpicks the temporary justice, post-deadlock, knowing exactly which case has stymied the high court. Imagine the President of the United States deciding Bush v. Gore by deciding who will decide it! This Article, based on original survey research, canvasses impasse resolution in all 'fty states’ high courts and evaluates the good, bad, and in-between of the sundry approaches. How do unsatisfying SCOTUS stalemates compare with what happens in state courts of last resort? High-court snarl-ups are a vexing issue, and the state- by-state details vary widely—and wildly. But this much is clear: Some state mechanisms to avoid stalemate are plainly more juris-imprudent than others. † Judge, United States Court of Appeals for the Fifth Circuit. For their careful readings and helpful revisions, I thank Mitu Gulati, Evan Young, Ben Aguiñaga, Matt Fisher, Ari Herbert, Brittany Bull, Nicholaus Mills, Alexa Gervasi, Michael Cotton, Cristina Squiers, Hope Garber, Colleen O’Leary, and Abigail Frisch. (!!") !!" University of Pennsylvania Law Review [Vol. #$%: !!# INTRODUCTION ............................................................................ !!& I. THE TROUBLE WITH DEADLOCK ............................................. !!% II. STAVING OFF STALEMATE: IMPASSE RESOLUTION IN COURTS OF LAST RESORT ..................................................................... !'! A. Ties That Bind: SCOTUS and Seventeen Like-Minded States ......... !'! #. SCOTUS is Statutorily and Structurally Tied to Ties ......... !'! a. Recusal Rules Make SCOTUS Uniquely Vulnerable to Ties ............................................................................. !'' b. At Least Partly to Avoid Ties, Supreme Court Recusal is Uniquely Disfavored ....................................................... !$# c. Plenty Have Proposed Solutions to SCOTUS Ties .............. !$! ". Survey Says: Seventeen States Model SCOTUS’s “Ties Happen” Approach ............................................................. !$( B. Varying Procedures of Varying Prudence: Avoiding and Breaking Legal Logjams in State High Courts .............................................. !(! #. Roughly Three-Fourths of Anti-stalemate States Appoint Fill-in Justices on the Front End, Aiming to Avoid Deadlock in the First Place ................................................ !(% ". Roughly Two-Thirds of Anti-stalemate States Rely on the Chief Justice to Select Substitute Justices ........................... !)' a. Twenty-Three Courts Rely on the Chief Justice ................... !)$ i. In Some States, the Chief Justice Selects Neutrally or Randomly ......................................... !)$ ii. In Other States, the Chief Justice Selects Non- randomly .............................................................. !%* b. Four Courts Rely on the Governor ................................... !%& c. Seven Courts Rely on Court Administration ...................... !%( III. YOU CAN’T PLEASE EVERYBODY: DRAWBACKS TO STATES’ DIVERGENT TIEBREAKING APPROACHES ................................. '** A. Angst When There Is No Tiebreaker—Pennsylvania and Wisconsin .. '** B. Angst When a Former Member Is the Tiebreaker—Maryland ........... '*# C. Angst When the Chief Justice Picks the Tiebreaker—New Jersey and California ............................................................................ '*" D. Angst When the Governor Picks the Tiebreaker (and Knows Which Case is Tied)—Texas ................................................................... '*' IV. PROPOSALS FOR REFORM IN TEXAS (AND BEYOND?) ................ '#" A. Classic Coke: Judicial Independence and the Rule of Law .................. '#" B. Possible Paths for Texas ................................................................ '#! #. Baby Steps: Tweak the Governor’s Role .............................. '#' ". Swing for the Fences: Scrap the Governor’s Role ................ '#' CONCLUSION ................................................................................ '#) "*"#] Supreme Stalemates !!& APPENDICES ................................................................................. '"* Appendix A—Summary Chart of State Approaches ............................... '"* Appendix B—Texas’s Temporary-Justice Process ..................................... '&# #. Non-strategic Selection—A Generic Focus on “Capable, Quali+ed Jurists”; “We Didn’t Try to Tip the Scales in a Big Way.” ........................................................................... '&# a. Governor Bill Clements (%,-,–%,.+ and %,.-–%,,%): One Appointee in One Case ................................................ '&# b. Governor George W. Bush (%,,&–#$$$): Seven Appointees in Four Cases ........................................ '&" c. Governor Rick Perry (#$$$–#$%&): Sixteen Appointees in Nine Cases .................................... '&& ". Strategic Selection—A Targeted Focus on the Issues Raised and Who Might Lean a Preferred Direction; “The Judicial Version of a Fantasy Football Draft”: Governor Greg Abbott ("*#'–present) ................................ '&' INTRODUCTION I was in Atlanta for a symposium on Supreme Court transparency when the shocking news arrived in a terse Twitter direct message: “Scalia dead.” For a generation of legal conservatives, the February "*#$ death of Justice Antonin Scalia was a devastating philosophical loss. A towering intellectual +gure, Justice Scalia was the undisputed godfather of the Court’s conservative invigoration. His passing portended a seismic, once-in-a-generation altering of the High Court’s ideological balance. The impact was not just philosophical, but practical. Justice Scalia’s seat remained empty for !"" days, the longest-ever opening on the nine-member Court. The Nation’s capital was consumed with fractious DEFCON-# rancor, ampli+ed by the impending presidential election, and Justice Scalia’s successor had to await President Obama’s successor.1 1 Soon after Justice Scalia’s passing, two constitutional scholars examined the Court’s various eight-justice rosters since World War II and concluded that the Court, while “in a tough spot,” had weathered such vacancies before and “managed its docket without a hitch.” Josh Blackman & Ilya Shapiro, Only Eight Justices? So What, WALL ST. J. (Feb. #!, #$"%, &:$" PM), https://www.wsj.com/articles/only-eight-justices-so-what-"!'%#&#$(( [https://perma.cc/)LT*-CKR&] (noting also that only twenty-five of fifty-four reargued cases ended up '–!). The Court, they said, would not “grind to a halt” but “can easily handle the current vacancy, however long it lasts.” Id. The most likely result, they predicted: delayed rulings in a handful of cases. Id. Supreme Court justices from both the left and right appeared to agree. Two uniquely qualified authorities, Justices Breyer and Alito, similarly remarked that the Court would not be unduly hamstrung in its work. “We’ll miss him, but we’ll do our work,” said Justice Breyer. Jon Schuppe, Supreme Court’s Breyer Says Scalia’s Death !!! University of Pennsylvania Law Review [Vol. #$%: !!# Political stalemate in turn yielded judicial stalemate. Because SCOTUS has no tiebreaking mechanism, divisive cases either lock up !–! (thus affirming the lower court), linger until a new justice arrives, or resolve in ways that duck the more nettlesome issues. Here, a single indefinite vacancy left the Court evenly divided in several cases, producing !–! nondecisions that resolved nothing.2 Fast forward to "*"*, when the passing of another legal giant, Justice Ruth Bader Ginsburg, sparked an even fiercer confirmation fracas. For the second presidential election in a row, the Court instantly became a major campaign issue. This time, the stakes were even higher (the prospect of a $–& conservative supermajority), and the election even nearer (just forty-six days away). Leading Democrats openly spoke of “packing” the Supreme Court (expanding its size for the first time since #)$%) if they captured the White House and Senate.3 But put aside Court packing—adding seats in hopes of in,uencing the Court’s decisions. What about Court hacking? Not addition but in+ltration. What if a politician could singlehandedly engineer the outcome of a case? Speci+cally, what if the President could name a +ll-in justice to cast a tiebreaking vote in a single case? Imagine if President Obama (while the “Scalia seat”

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