Slowing down

WITH five votes, the late Justice William Brennan liked to tell his clerks, “you can do anything around here”. The rule still applies after the death in February of Antonin Scalia. But with only eight justices remaining, the magic number of five is now harder to come by. Twice since Mr Scalia’s death the Supreme Court has performed the judicial equivalent of throwing up its hands. In a small case concerning banking rules and in an important one challenging the future of public-sector unions, the justices issued one-sentence per curiam (“by the court”) rulings: “The judgment is affirmed by an equally divided court.” A tie in the high court means that the ruling in the court below stands. But these non-rulings do not bind other lower courts, and the judgment has no value as a precedent. A tie, in short, leaves everything as it was and as it would have been had the justices never agreed to hear the case in the first place.