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.


Unknown said...

I find claiming "if law really mattered the objectors would have lost 8-0" strains credulity. Did Objectors face a substantial burden for complying with Their faith? At $36,500 per Employee per year, even hinting "no" is laughable. Is the government's interest compelling as applied to the Objectors? (Remember: RFRA requires the interest be compelling as applied to the Claimant and not in the abstract.) Let's presume for a second the answer to that question is "yes". Does the regulation use the least restrictive means of advancing that interest? In a number of these cases, the answer is clearly "no"; there is no requirement the reporting requirements be placed on the Employers; the reporting requirement could have been placed on the insurance company or 3rd party administrators from the beginning.

The only question remaining would be what to do in the case of self-insured plans without a 3rd party administrator. In these cases, We return to the compelling-interest-as-applied-to-the-particular-Claimant question. Those cases are/will be few and far between and, given the circumstances, are not likely to meet that standard, such as in the case of the Little Sisters using, if I remember correctly, the plan provided by the Christian Brothers, which is a church plan if I understand correctly.

Joe said...

I'm somewhat sympathetic to the professor's overall argument that a 4-4 Court results in the sort of limited role (the whole not a "court" business to me is silly, to be blunt about it), but it isn't some sort of long term fix. Plus, separately, I think Republicans in Congress are acting incorrectly as a matter of good policy. Finally, to the extent we like what is going on, Garland would be an ideal choice given his judicial temperament. Clinton (knock on wood) might pick someone more "activist."

As to the contraceptives case, I think Kennedy should had bit the bullet and went along with nearly all the circuits that decided the question and upheld the accommodation. But, perhaps, Marci Hamilton at Verdict today (where three professors here have regular columns) argues, the ultimate problem is RFRA encourages the courts to have an ongoing, never-ending, congressional role in balancing religious accommodations. And, too biased toward one side. So, we need to change the law to fix that. Scalia in Oregon v. Smith at one point said that was one problem with the old policy but never came back to that after RFRA was passed.

Anyway, reference is made to the early 20th Century. How bad the courts were then has been a subject of some debate but simply put the ultimate problem there was the legal and political system as a whole. There was some progressive efforts checked by the courts but this was in part because of the people behind stocking them. Likewise, once the society as a whole shifted in their views on the proper role of the governments, the courts went along.

Unknown said...

@Joe: If J. Kennedy had voted to affirm the majority of the appellate courts, He would be saying the courts understand People's beliefs better than the People do; that doesn't hold up to scrutiny. Meanwhile, I have yet to find a court case where RFRA made a law wholly unworkable; the only question remaining is "How do We advance the given interest?" Until that moment arrives, arguing about "changing" RFRA is to say either a major impetus for the original colonization of North America by some of the earliest Settlers (excluding the prehistoric movement of the Indigenous), religious freedom, either must take a back seat to a non-compelling interest or must be trivialized in such a way as to not used the least restrictive means to advance that interest. Seeing as how the principles embodied in RFRA were considered to be the correct interpretation of the Free Exercise Clause for roughly half of the 20th century. So, I feel the implications of "changing" RFRA is very disturbing.

Joe said...

It is not about understanding "People's beliefs better" but applying the correct balance of the law in question including "substantial burden" and effects on third parties, which are legal and factual questions in various respects.

The government provided accommodations here and even some who supported the Hobby Lobby opinion argued that the challengers here went too far, including a major religious rights supporter professor with a key amicus brief. This is not just the Marci Hamilton anti-RFRA people of the world involved here.

It is not about making a law "wholly unworkable" a very high test to meet. It is about the level of complications involved, including the basic realization that the effort to formulate an accommodation here simply will not be evenly applied across the board to each individual religious claim and law. It is simply unlikely though we won't hear much about all these cases since they get less attention and "abortion" isn't able to be tossed around as much. The net result will be unjust burdens to third parties and favoring of certain religions over others.

Appeals to history ignore how religious accommodations were traditionally handled by legislative judgments that involved less strict balancing tests. It basically amounts to Scalia being said given his Oregon v. Smith opinion a threat to religious liberty. Finally, Hobby Lobby held that RFRA went BEYOND traditional Free Exercise Clause rules. Cf., for instance, the rules in U.S. v. Lee which would deem the dissent's approach there correct. The rules for "roughly half" as to prisons also was less strict than they are today.

The Obama Administration spent lots of time to formulate an accommodation here, one allegedly acceptable even going by Hobby Lobby. Free exercise was respected and balanced to protect the rights of third parties to PRACTICE THEIR OWN RELIGION aided by the health care PPACA provides down to reducing abortions they might personally find immoral. Are these PEOPLE's beliefs important? I think so.

Joe said...

(I think Oregon v. Smith was unnecessarily broad so appeals to Scalia only take me so far; just to be on the record there though. Still, appeals to "original colonization of North America" is just a tad bit much especially given an accommodation, even when dealing with health insurance of third parties in the public workplace, not some strictly internal ministerial matter, was made. It just wasn't deemed enough.)

Unknown said...

I'm not sure where the "appeals to Scalia only go so far" came from. I didn't mention His Honor.

Reviewing the opinions of the courts which ruled against the Objectors shows the courts performed theological analysis, determining the regulations provided a certain degree of attenuation which absolved the Objectors of complicity with what They consider to be a moral evil. However, as noted in Thomas v. Review Board, the courts are in no position to make such determinations. In short, the courts violated precedent on this point.

Whether Someone thinks Objectors have "gone too far" is not dispositive in light of the fact the text of RFRA makes no reference to said Someone's non-judicial opinion. What matters is whether there exists a feasible alternative the administration can offer. The supplemental briefing shows there is such an alternative.

Additionally, the text of RFRA can only be construed to require different alternatives for different cases, depending upon the variation of a particular category of belief. Since this subject carries a wide range of views, providing multiple alternatives is bound to be the result.

I also feel, given the circumstances, the idea these cases "get less attention" is absurd; these cases were a big deal during the 2012 election and seem to be a big deal in this one as well.

Paragraph four of Your comment seems confusing at the start. You appear to be arguing, because other legislatures have at times failed to adhere to the principle I described above, I and the Objectors should just "suck it up and deal". Right and wrong simply does not work that way.

Additionally, the second sentence of that paragraph is not a complete sentence and not intelligible.

Plus, the Hobby Lobby ruling did not say the opinion in Lee would have resolved differently.

I also do not know from where the "roughly half" comment comes. Certainly not Me.

In regards to the last paragraph, spending lots of time on something does mean One is automatically successful. I could spend 80 hours a week for 20 years performing brain surgery on a dead Patient; it's not reasonable to think I will bring that Patient back to Life. Meanwhile, You seem to impute upon RFRA a "third party harm" exception to the statute which does not exist. (Cf. 42 USC 2000bb et seq.)