Split Decision

A decision by an appellate court that is not unanimous.

When the members of an appellate court cannot reach full agreement, a split decision occurs. A split decision is distinct from a unanimous decision in which all the judges join in agreement. In a split decision, the will of the majority of the judges is binding, and one member of the majority delivers the opinion of the court itself. One or more members of the minority can also write a dissent, which is a critical explanation of the minority's reasons for not joining in the majority decision. A court that reaches a split decision is called a divided court. Split decisions cannot occur at the trial level because there only one judge presides. Instead, split decisions occur in state and federal appellate courts, including state supreme courts and the U.S. Supreme Court. Split decisions also occur in regulatory boards, government commissions, and juries (where a split decision can result in a hung or deadlocked jury).

Although split decisions carry the same legal authority as unanimous decisions, they have a problematic place in U.S. JURISPRUDENCE. Most important, they can reflect significant disagreement among the members of a court: for example, the judges may not fully agree on a constitutional question, the application of precedents in case law, or the interpretation of a statute. Occasionally, a split decision indicates sharp divisions over an issue that has not yet been settled in the law. In appealing such a case to a higher court, appellees often note that the lower court has rendered a split decision in order to impress upon the higher court that the decision in question is less than wholly convincing. A split decision may be seen as less stable than a unanimous one, allowing more room for a change in the law as society and the court's composition change.

Split decisions by the U.S. Supreme Court attract special attention, particularly when the vote is 5–4. At such times, and especially in the face of controversial cases that are accompanied by sharply worded dissents, the Court is described as "deeply divided." Not surprisingly, since the Court is the final arbiter of U.S. law, a split decision is often seen as an indication of the justices' divergent legal and political ideologies. Legal scholars and reporters, who traditionally assess the justices' political leanings, frequently pay special attention to split decisions when analyzing the Court's decisions for a given term.

Some commentators have argued that a deeply divided Supreme Court fails in its duty to provide guidance to lower courts and also loses legitimacy in the eyes of the public. Justice FELIX FRANKFURTER feared such a possibility in 1955, when the Court was preparing to consider the question of miscegenation laws which prohibited interracial marriage. Frankfurter urged the Court not to hear the case because he feared that a split decision would plunge the Court into "the vortex of the present disquietude … [and] embarrass the carrying-out of the Court's decree." Nevertheless, unanimous agreement by the Court is not the rule. Many of the twentieth century's most controversial cases have produced split decisions, including the decisions to uphold AFFIRMATIVE ACTION (REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 [1978]) and to uphold a woman's right to an ABORTION (ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).