Thursday, May 19, 2016

A Few More Thoughts on the Four-Four Court

By Eric Segall

Yesterday, I participated in the New York Times’ Room for Debate with Professors Garrett Epps and Kermit Roosevelt, both of whom I deeply admire. The topic was the pros and cons of the four-four evenly divided (among liberals and conservatives) Supreme Court. 

Over the last month, I have repeatedly written that there are more benefits to the current state of affairs than many might think. The consequences of the deadlock are that 1) the Justices have to try and find consensus and common ground in hard cases as opposed to Justice Kennedy (or maybe Garland) getting to decide; 2) a majority of Justices can’t just impose a partisan political agenda (think Roberts and voting rights) on the rest of us; 3) four-four ties leave hard issues to well over one hundred lower court judges who are far more diverse than the Justices educationally, geographically, and politically; and 4) if national uniformity is truly important in an economic planning kind of way, the Justices will likely find ways to provide needed guidance.

Professor Epps used Monday’s contraception case to argue the Court is broken “because a Court that cannot decide cases ceases to be a court.” He didn’t like the fact that the eight remaining Justices basically told the parties in that case that “Mommy [is not] feeling well. You children work it out among yourselves.”

Leaving aside my belief that the Court is not a court even when fully functioning, the fact is that the Justices did decide the contraception case. It remanded the case to eight circuit courts of appeals and basically said start over. That is not entirely unusual and may even be beneficial in the long run. Here are a few sentiments that I think my friend Professor Epps might agree with based on his prior fine reporting: 1) if law really mattered the religious objectors would have lost in the Supreme Court, 8-0; 2) If Justice Scalia were alive, the religious objectors would have won the case 5-4; and 3) If Trump or Romney or Cruz were to choose the ninth Justice, the religious objectors would likely win. I’ll take my chances with the lower courts.

In his last paragraph, Professor Epps suggests that the conservative Justices on the Court may hold this gridlock against the GOP and eventually decide cases in a less partisan way because ultimately their allegiance is to Court not party. That used to be true of the Justices but I am not sure it accurately describes Justices Alito and Thomas (or the late Justice Scalia). In any event, if Professor Epps is right, that just adds another reason to the list of reasons why the current deadlock should last as long as possible.

Professor Roosevelt, talking directly to liberals and progressives, also suggests that a four-four splintered Court “is hardly a court,” but folks on the left should not fear because the next Justice will most likely be either Garland or a Clinton nominee and thus the left “can wait one more year for [its] time to come.” This idea is similar to what Professor Mark Tushnet wrote last Saturday in response to my post on this Blog last week. The message to liberals is do not engage in unilateral disarmament, take your Justices when you can, and then start reversing as many conservative decisions as possible.

The problem with this tactic is that the left, especially the progressive left, has rarely achieved significant success in the Supreme Court. Take away the Warren Court years (not that many) and either conservative decision-making or relative political neutrality has been the Court’s overwhelming pattern over the last 210 years. It is hard to believe in the face of this consistent history that a liberal majority will live long and prosper on the Court. 

Moreover, many of the liberal decisions of the Warren Court years have been cut back or reversed by later conservative Courts while others proved ineffective or mostly ineffective in any event. Our schools are still segregated, poor and rural women still cannot obtain safe abortions, people of color are still being excluded from voting, and the death penalty is still used in a racially discriminatory manner.

Although the Court has a difficult time fostering progressive change, it has no problem stopping such change. Between 1900 and 1936, the Court blocked much progressive legislation dealing with workers’ rights and safety, (including a federal law on child labor), while more recently the Rehnquist and Roberts Courts have shut down or at least choked out much of habeas corpus, class action litigation, and civil rights cases brought by public interest groups. A strong argument can be made that, had the Court been deadlocked four-four among conservatives and liberals since 1803, the left, not the right, would be much better off today.

But, most importantly, and more neutrally, from 1981 until the day Justice Scalia died in February of this year, virtually every important contested issue in 5-4 constitutional law cases was in the hands of two people (Justices O’Connor and Kennedy). And, for the last decade, Justice Kennedy has alone dictated the results in most of those cases. Perhaps the most significant benefit of the current eight member equally divided Court is that to achieve victory, warring parties have to either convince at least one Justice to jump ship or take their chances in the lower courts. In our most divisive and difficult cases, I would rather live in that kind of America than Justice Kennedy’s America.