Monday, April 25, 2016

Doubling Down on the Benefits of an Equally Divided Supreme Court

By Eric Segall

Last week, I published a piece in Salon arguing that our current even-numbered, equally divided (as a matter of political party affiliation) Supreme Court is not only not a bad thing for the country but in fact a very good thing. With eight Justices divided along party lines, I argued, the Justices on both sides would be far less capable of carrying out a partisan agenda, would need to compromise much more with each other to get things done, and, in the long run, would likely issue more moderate decisions less infused with personal politics and values. I pointed to the current RFRA litigation, and the Court’s supplemental order desperately trying to achieve a compromise to avoid a four-to-four tie as an example of that kind of behavior.

I knew I was arguing against the conventional wisdom. Interestingly, I received generally positive feedback from folks of quite different political persuasions, such as Sandy Levinson and Ed Whelan, who both thought it was worthwhile to think about ways to reduce the ability of the Justices to affect our politics.

They were a minority, however, as most people whom I heard from thought that we need an odd number of Justices to resolve circuit splits in the lower courts (a tie vote in the Supreme Court has no legal effect), and, in any event, although Congress could constitutionally fix the number of Justices at eight, there would be no realistic way to make sure going forward the Court was equally divided among Republicans and Democrats, liberals and conservatives.

As to the first objection, the Justices only take 75 cases a year now, which means that circuit courts have the effective final say in 99% of federal cases and, even in those rare cases involving circuit splits, the Court will relatively rarely divide four-to-four.

But what about those few cases a year like abortion, affirmation action, and voting rights where the Justices will divide equally? I agree there may be some pain but, like with the contraception case, if the Justices know that 4-4 ties are the way of the future, they will likely work hard to find a compromise. In any event, circuit court judges are no slouches, they are much more pluralistic than the Justices, and perhaps having different rules in different parts of the country will serve to shed light on the pros and cons of the various policy debates.

The second objection is much harder to overcome. An even number of Justices on a Court with a majority of Republicans or Democrats would not further the purposes of my proposal, so the Senate would need a way to ensure a four-to-four balance. In my first draft of the Salon piece, I advocated that Congress abolish Justice Scalia’s seat, which it could clearly do, and then enact an internal Senate rule that, absent a three-quarters vote of all Senators, a retiring or deceased Justice cannot be replaced by a nominee from the retirees’ or deceased’s political party. That rule would not formally prevent the President from nominating whomever she wants but the Senate could refuse advice and consent for any and all reasons, including the requirements of its own internal rules.

Friends who read that draft thought that the proposal could be gamed by nominees not identifying their political party or even affirmatively mischaracterizing their party affiliation. Readers also thought that the proposal would require nominees to identify themselves as members of one party or another, which would eliminate independents and be unfair to the nominees. And, of course, the current Senate cannot bind future Senates, even by internal rule.

There are responses to these objections. What are the odds really of an independent being nominated and confirmed anytime in the near future anyway? And a nominee trying to game the system by hiding or changing his political party affiliation would be easily identified. Moreover, no proposal is perfect, the Senate has age-old rules it does follow over time, and there could be a political price to pay to change course after years of success with a non-partisan Court.

But, mostly, I want to say that thinking about the benefits of an even numbered, equally divided Supreme Court tells us something important about the institution separate from the question of how to implement the idea. For most of the last thirty years, the constitutional results in politically charged cases (the ones most likely to divide along partisan lines), depended on two people, Justices O’Connor and Kennedy. And, for the last ten years, Justice Kennedy has dictated the rules in most of those cases. Is that truly a better system of government than dispersing that decision making authority among twelve different circuit courts of appeals made up of far more diverse judges than the nine sitting on our highest Court (turns out many appellate judges did not go to Harvard or Yale and are from the middle part of the country). Moreover, why is it so important that there be an even number of Justices if law, not personal preference, plays an important role in generating decisions? Finally, if there are eight Justices divided along party lines who can’t agree on a particular result, might that show that we don’t need this particular political/legal institution to say “what the law is” for all fifty states? Are we so sure we want to all live in Justice Kennedy’s (or the next swing Justice's) America?


Shag from Brookline said...

Is this "Sandlot Justice" in the sense of "sandlot baseball's" "Tie goes to the runner" the "runner" being the Circuit Court of Appeals? The Court was not designed as a representative body in the manner of the elective branches. Maintaining "see-saw" political balance on the Court can be difficult. Perceptions of certain Justices' political preferences are sometimes mistaken, as in the cases of Souter and Stevens. I would hope that a Justice would grow in that role and not peg him/herself to a fixed political view especially as political views of parties change over time.

Joe said...

It seems more useful in a fashion to have a rule where at least certain types of cases require a supermajority for the lower court to be overturned or the law overturned etc. There are state courts that do something like that.

A majority of Supreme Court cases don't rely on Kennedy or some swing vote; a few of the remainder aren't that important. Some along margins 4A case, e.g., is neither here or there. That leaves some important cases though some important cases also are not decided 5-4. Rasul v. Bush, e.g., was 6-3 as was Lawrence v. Texas.

Another way to reduce problems with swing justices is to confirm a Garland type. As has been noted elsewhere, this would likely make two or three justices potential swings in such and such a case. This was often the case in the past -- O'Connor, Kennedy, White etc. for various issues might join with a bloc. If we don't want to rely on a FEW justices, not sure how that would work.

Finally, there is an appeal to more reliance on lower courts. That's a possible path -- I personally think the USSC should probably take less state court decisions. But, not sure if, e.g., major statutory and other matters (GITMO cases basically go to die in the DC Circuit since the USSC never takes cases) should simply be left to the appeals court. And, over time, swing justices will matter there too, maybe even those on three justice panels. The 1CA as a whole has less judges than SCOTUS. Again, if we want that, let's do it officially, not rely on a 4-4 Court.

And, bottom line, trying to make lemonade from lemons, Beyonce-like might be, should not let us ignore what the Republicans are doing now. They are perverting the process.

Joe said...

ETA: should be "three judges" panels -- "justices" only used for the USSC

Shag from Brookline said...

Perhaps my sanlot baseball metaphor should be modified: "Tie goes to the runners."

Joseph Simmons said...

I agree.