Recent decisions have shown two paths that a U.S. Supreme Court case can take while one seat remains vacant. A 4-4 division is possible, as in the high-stakes union-fees case. But the justices can also search for a decision that a majority can support, even if they disagree on the dispositive reasoning.
Businesses and other repeat litigants that are used to a stable and relatively predictable Supreme Court should understand that the game has changed: Although cries that the court won’t be able to decide any major cases are overblown, this may be an era of “small ball” at the court.
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