Recusals and the “Problem” of an Equally Divided Supreme Court

Published in 2005. Journal of Appellate Practice and Process 7 (1): 75-99.

Ryan Black
Lee Epstein

We explore the extent to which discretionary recusals produce an equally divided court. As it turns out (and contrary to some commentary), in only a small fraction of cases in which one justice recuses him or herself (49 out of 599) does a tie result.

We develop this finding in three steps. First, we provide a brief look at the ``problem" of an equally divided Court; next we present our analysis of the results of discretionary recusals. Along these lines, we provide some descriptive data on recusals since the 1946 term, as well as demonstrate that recusals generally do not produce equally divided Courts. We end with a discussion on possible explanations for our results and with suggestions for future research on recusals.

Click here for the article (.pdf).
Click here for the data (zipped Stata.dta file).