There may not be a rule. A tie means that the court cannot reach a decision (no majority). The lower court is affirmed by default.
On the other hand, there may be a SC rule somewhere. I haven't found them, yet.
As to the number of justices, FDR tried to 'pack' the court by adding a number of justices. I think he tried to go up to 12.
There is a rule of law to cite or I wouldn't have been asked to do so. I think the prof
knew this was going to be tough, and I thought it was easy
If I can cite what the freaking oath required by judges to sit on the supreme court is, and other issues such as recusing, then I have to be able to cite a 4-4 decision, and the rule of law.
28 USCS § 453 (2004)
§ 453. Oaths of justices and judges
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ------, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ------ under the Constitution and laws of the United States. So help me God."
(June 25, 1948, ch 646, § 1, 62 Stat. 907; Dec. 1, 1990, P.L. 101-650, Title IV, Subtitle I, § 404, 104 Stat. 5124.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Prior law and revision:
Based on title 28, U.S.C., 1940 ed., §§ 241, 372, and District of Columbia Code, 1940 ed., §§ 11-203, 11-303 (R.S.D.C., § 752, 18 Stat. pt. II, 90; Feb. 9, 1893, ch. 74, § 3, 27 Stat. 435; Mar. 3, 1901, ch. 854, § 223, 31 Stat. 1224; Mar. 3, 1911, ch. 231, §§ 136, 137, 257, 36 Stat. 1135, 1161; Feb. 25, 1919, ch. 29, § 4, 40 Stat. 1157).
This section consolidates sections 11-203 and 11-303 of District of Columbia Code, 1940 ed., and section 372 of title 28, U.S.C., 1940 ed., with that portion of section 241 of said title 28 providing that judges of the Court of Claims shall take an oath of office. The remainder of said section 241 comprises sections 171 and 173 of this title.
The phrase "justice or judge of the United States" was substituted for "justices of the Supreme Court, the circuit judges, and the district judges" appearing in said section 372, in order to extend the provisions of this section to judges of the Court of Claims, Customs Court, and Court of Customs and Patent Appeals and to all judges of any court which may be created by enactment of Congress. See definition in section 451 of this title.
The Attorney General has ruled that the expression "any judge of any court of the United States" applied to the Chief Justice and all judges of the Court of Claims. (21 Op. Atty. Gen. 449.)
1990. Act Dec. 1, 1990 (effective 90 days after enactment as provided by § 407 of such Act, which appears as 28 USCS § 332 note), substituted "under" for "according to the best of my abilities and understanding, agreeably to".