Almost immediately after last week’s oral argument in the Exxon Valdez case, some veteran journalists began to speculate that the U.S. Supreme Court could divide 4-4 over whether the punitive damages awarded in that case should be reduced or set aside entirely. The possibility of a tie vote arises because Justice Samuel A. Alito Jr. is recused due to his ownership of stock in Exxon.
And on Monday of this week, the U.S. Supreme Court affirmed by an equally divided vote the decision under review in Warner-Lambert Co. v. Kent, vividly demonstrating that recusal-based tie votes are a fact of life at the U.S. Supreme Court whenever an even number of judges remains to decide the case. However, because recusal-based tie votes occur infrequently at the U.S. Supreme Court, little if any attention is focused on whether to implement a solution that might avoid them altogether.
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