Courts

The Vice President Can't Break A 50-50 Tie For The Supreme Court... And No One Cares

This is all true... and none of it matters.

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(Photo by Al Drago/Getty Images)

To be clear, Joe Biden’s nominee to fill Justice Breyer’s seat will most likely get confirmed. She’ll probably secure 53 or so votes, when moderate Republicans crossing over to confirm rendering moot any risk of a Democratic defection or two.

But there’s already some attention mounting about an esoteric constitutional law question — the best kind! — and the repercussions it could have for a straight party line vote on Biden’s nominee.

Did you know Vice President Harris can’t break a 50-50 tie on a Supreme Court nominee? Cue the ominous music. Prepare for cable news legal analyst hand-wringing… and not just from Jeffrey Toobin.

Also, no one really cares.

Back during the Trump administration, Professor Laurence Tribe outlined the constitutional argument against the Vice President’s power to break a Senate deadlocked over a Supreme Court nomination. While the Constitution is clear that the Vice President can cast a deciding vote to break ties over legislation, Tribe noted that the text does not extend this power to the Senate’s “advise and consent” role in confirming nominees. Everyone’s favorite hip-hop Founder Alexander Hamilton even said as much in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made” contrasting the Constitution with state governments that do allow the executive to break ties on their own appointments.

Tribe is almost certainly right about this point, but this ship has sailed.

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While no Supreme Court justice has ever needed a tie-breaking vote, Vice Presidents can and do vote to confirm other nominees. ABA “Not Qualified” Judge Jonathan Kobes is on the Eighth Circuit because of a 51-50 Mike Pence vote. Instead of objecting, the Democrats just joined the party. The U.S. Attorney for Massachusetts was confirmed by a 51-50 vote last month. Regardless of what’s technically correct, this is how the Senate has decided to proceed and everyone’s agreed to just go along with it.

So when we say “can’t” break a tie, we really mean “shouldn’t be able to… but totally can.”

As a practical matter, what would this challenge even look like? Perhaps this Supreme Court isn’t above improperly wading into political question waters, but what relief could they grant without causing mass chaos? Do they have to live with freeing everyone convicted in Massachusetts under an improperly confirmed prosecutor? Would every Eighth Circuit opinion Kobes joined be up for challenge? It’s hard to imagine the Court nuking its own legitimacy to issue a “one-time only, please never cite this back at us” opinion over this so these questions about the possible fallout are damning.

It’s still unlikely this ends in a 50-50 tie anyway, but if it does it’s not going to have to matter.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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