Two months after Justice Scalia’s death, we can see a pattern emerging on how the Court is treating cases on which they are divided 4-4. First, they are making an effort to find a majority through compromise, which is fine as far as it goes. Second, when that proves impossible, they affirm by an equally divided Court.
What the Court is not doing is putting over cases for another argument next Term. Sometimes a delay of a year or more might simply be intolerable for the parties to the litigation or for some other reason. Perhaps the Court is also reluctant to put cases over during this Term–they might be more willing to do that in the Fall since a new Justice will surely be in place by next Spring. And I can also see that the 4 Justices who think they will lose when a new argument occurs may prefer a draw. Still, I would think that there should be at least one 4-4 case that merits reargument.