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handle is hein.crs/govetpu0001 and id is 1 raw text is: Congressionol Research Service Informing the Iegisl9tive debate since 1914 0 February 10, 2026 Supreme Court Decisions Without a Majority Since 1869, the size of the U.S. Supreme Court has been set by statute at nine Justices. By long-standing Court practice, all of the Justices participate in most merits decisions and many other types of decisions, and the Court determines the outcome by majority vote, meaning that the disposition that garners the support of five or more Justices is how the Court rules. Some matters, however, can be decided without the support-or sometimes even the participation- of a majority of the Justices. There are several circumstances in which the Supreme Court may issue a decision without the support of a majority of the Justices. First, certain matters that the Court considers do not require a majority vote. Second, an even number of Justices may hear a matter, and the Court may be equally divided. Third, in some cases, the Court issues fractured decisions in which no opinion receives the support of a majority (or half) of the participating Justices. This In Focus discusses each of those circumstances in turn, then concludes with selected considerations for Congress related to Supreme Court voting rules. Matters Not Requ ing a Majority Vote Supreme Court cases generally proceed before the full Court and are decided by majority vote, but different voting rules apply to some matters. Perhaps the most prominent example of this is petitions for writs of certiorari, also called cert petitions. Most cases that reach the Supreme Court do so via cert petitions. When a party files a cert petition seeking Supreme Court review of a decision of a lower federal court or the highest court of a state, the Supreme Court has discretion whether or not to hear the case. (A minority of cases reach the Court via mandatory appeals or are commenced directly in the Supreme Court.) Under a long- standing practice known as the rule of four, the Court will grant a cert petition if at least four of the nine Justices vote to hear the case. The rule of four is not required by the Constitution and is not set out in any federal statute or in the published Rules of the Supreme Court. Some other matters before the Supreme Court can be considered and decided by a single Justice. An individual Justice may rule on some procedural matters such as applications to extend time to file a cert petition. A single Justice can also consider certain requests for interim relief. One example is an application for a stay pending appeal, in which litigants ask the Court to pause a lower court ruling or other government action while an appeal is litigated. Each of the federal judicial circuits has an assigned Circuit Justice who is responsible for considering single Justice matters arising from that circuit. If the Circuit Justice denies a stay, the Rules of the Supreme Court allow the applicant to present the request to another Justice, though renewing a denied request is disfavored. The Rules also allow an individual Justice to refer matters such as stay applications to the full Court for consideration. Justices have done this in some high-profile cases, meaning that requests for relief originally submitted to a single Justice were ultimately granted or denied by a majority of the full Court. Decisions of an Eveny Dv ded Court While the Supreme Court currently has nine seats, there are times when fewer than nine Justices consider a case. This may occur when there is a vacancy on the Court or when a Justice does not participate in a particular case-for example, due to recusal. In addition, the Supreme Court has not always had nine members. Congress sets the size of the Court by legislation and changed the Court's size numerous times between the Founding and the Reconstruction Era. Thus, the Court has sometimes had an even number of members, ranging from six to ten. When an even number of Justices participate in a case, it is possible for the Justices' votes to be evenly divided between two possible outcomes. When the Justices split evenly on whether to affirm or reverse a lower court decision, the lower court decision stands. Such a disposition binds the parties to the case, but, unlike a majority decision of the Court, an affirmance by an equally divided Court is not binding precedent in other cases. Fractured Decisons Sometimes, there are more than two possible outcomes in a Supreme Court case or multiple possible legal justifications for reaching a certain outcome. In these circumstances, the Court may issue a fractured decision with the Justices divided into three or more groups. The Court's written opinions usually explain what a fractured ruling means for the parties to the case, but fractured decisions may raise questions about how they apply as precedent in future cases. In Marks v. United States, the Supreme Court explained, When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. 430 U.S. 188, 193 (1977) (internal quotes and citation omitted). The narrowest opinion may not be the same as the plurality opinion-that is, the opinion that receives the most votes without obtaining a majority. This means that the controlling rationale may not be the one that received the most support from the Justices. Lower courts have sometimes struggled