Everything about the decision is frustrating for those looking for greater clarity in this area. Not only did the Court deadlock, but it also issued only a one-sentence ruling upholding the lower court’s decision, saying only: “The judgment is affirmed by an equally divided Court.”
Brevity may be “the soul of wit” to Shakespeare, but it is the bane of constitutional scholars who want to understand where the line is drawn in such cases.
It is not even confirmed which justice joined the liberal justices in producing the deadlock. With Barrett out, a conservative still had to join Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson to produce this result.
We still do not know why Barrett recused herself. Frankly, the public should be informed when a justice leaves the highest court with an even number of members with the danger of such a deadlock. I understand that some information might be withheld for the privacy of justices, but some general explanation would seem in order on the nature of the reason.
My assumption is that it was either Chief Justice Roberts or Justice Kavanaugh who supplied the fourth vote with a slight edge to Roberts. However, we are not informed of the identities any more than the rationales of the justices.
No one should be satisfied with any of this. Barrett’s reason should be a matter of public record as should be the identity of the justices voting on both sides. Then, there is the little matter of a lack of an actual opinion to go with the announced result. Instead, the public is given an order shorter than a notice from the DMV that a license renewal is due.
The order is even too short for a Haiku by two syllables and two lines.