On Oct. 3, President George W. Bush nominated White House counsel Harriet Miers to replace Associate Justice Sandra Day O’Connor on the U.S. Supreme Court.
When she announced her retirement, O’Connor said she would continue to sit on the court until a replacement is confirmed.
Both O’Connor and newly confirmed Chief Justice John Roberts are expected to be sitting for oral arguments of Schaffer v. Weast on Oct. 5.
But there’s a catch. O’Connor’s vote will only count in cases where a decision is issued before Miers — if she is confirmed — takes her seat.
In cases heard but not decided at that time, an affirmative decision requires a majority of the eight total votes. If there is a 4-4 split, the lower court decision stands, but the Supreme Court ruling is not considered a precedent.
Such cases are often re-argued.
The Court may make an effort to issue some decisions more quickly than usual, and Schaffer v. Weast is perhaps less controversial than other issues before the court such as assisted suicide and capital punishment law.