Monday, September 19, 2016

Comfort Zone Constitutionalism

By Eric Segall

Last Friday I attended an excellent symposium at the Savannah Law School on American Legal Fictions. In addition to a stirring key note address by Garrett Epps, there were numerous fascinating presentations on a wide range of topics from conflict minerals to hypothetical jurisdiction. Not surprising to regular readers of this Blog, I spoke about the fiction that we need an odd number of Supreme Court Justices and/or a strong Supreme Court to regularly resolve our nation's most difficult legal, social, and political controversies. My thesis is that a Court composed of an ideologically divided, even number of Justices, in other words our current Court, represents an optimal state of affairs and, with some work, could be made permanent by the Senate without a constitutional amendment.

Over the last eight months, my work on this topic has been published by the New York Times, Salon, and the Daily Beast, and I've been quoted extensively in the Huffington Post and Bloomberg among other national outlets. I mention that not to self-promote but only because it appears that smart, informed, non-academics, both inside and outside the law, have sympathy for my arguments about making this structural change to the Court. On Friday, virtually every academic in the room in Savannah disagreed with me, yet a number of students came up to me after the session and said they thought my idea persuaded them that a permanent, evenly-divided Supreme Court would be a welcome change.

This essay makes two points. First, I will repeat in short form the pros and cons of my proposal to highlight again why I think it makes a lot of sense (and has the benefit of being both non-partisan and ideologically neutral). Second, the reaction to what I admit is an outside-the-box idea demonstrates an aspect of our legal culture that I will call comfort zone constitutionalism.

The benefits of a Court with four liberals and four conservatives (generally speaking) are that such a  Court will have to work hard to reach consensus and will inevitably issue narrower decisions in some hard cases. This need to get along and reach across our current ideological divides would provide both substantive and symbolic benefits. In addition, if the Court is evenly divided, it will be much harder for five (or more) Justices to impose their ideological agendas on all fifty states and the American people as arguably happened between 1900 and 1936 with the Lochner Court and for a decade or so with the Warren Court.

To the extent there are some cases where the Justices will end up in four-to-four ties, the issues will be resolved in the Courts of Appeals, which are often made up of impressive judges who are far more diverse, educationally, geographically, professionally, and politically than our current Justices. Finally, the requirement that in highly charged cases (the ones most likely to divide the Court) a litigant must persuade a Justice of one political stripe to switch sides or at least make nice with a Justice on the other side has numerous upsides including demonstrating that law can at times trump politics and that, if a small group of lawyers sitting in the nation's capitol is going to impose a controversial and divisive national rule on the rest of the country, there is always going to be at least a little compromise and bi-partisan consensus before they impose the rule.

The push back I received in Savannah, and have received elsewhere, falls into three broad categories. First, people argue that in many hard cases there is a strong need for national uniformity and a deadlocked Court leaves the issue unresolved. Second, there is no chance the Senate would ever agree to such a proposal, so there is no point in discussing such an unrealistic idea. And, third, there is what I will label an emotional reaction to what would be a dramatic change to both the nomination process and the nature of the Supreme Court.

The uniformity objection is vastly overstated. As I've argued before, over 99% of federal cases never reach the Supreme Court and, of the less than 1% that do, few raise issues that require a national rule. Moreover, if an evenly divided Court became a permanent feature of our constitutional system, the Justices would work even harder in cases where the circuits are divided to issue a decision in order to protect the Justices' own power over time. Finally, where smart, diverse, lower court judges are divided, perhaps it makes sense that a one size fits all national rule should not be imposed absent some cross-ideological agreement on our nation's highest Court.

The objection by legal academics that my proposal is an unrealistic one is interesting given that presumably our job as academics is to push boundaries and articulate creative arguments. I am not the first law professor to suggest radical change knowing such change is unlikely. Moreover, the Senate has all kinds of rules, such as the "blue slip" veto power a single Senator wields over judges nominated from his state, that both sides of the Senate aisle religiously adhere to but which are not technically binding.

Why is it so crazy to think that the leaders of both parties would announce to the world, in a moment of bi-partisan pride, that from now on the Senate will only approve a Supreme Court nominee who is roughly of the same politics as the Justice who has recently retired or died, all in the spirit of playing fair on our nation's highest Court? After all, a weakened Supreme Court with Justices who cannot impose their will simply because they have five or more ideologically aligned votes, inevitably over time cedes more power to the elected branches (and the states). I think that fact explains why smart, informed non-constitutional law types have expressed agreement with my proposal. We need a Supreme Court to enforce constitutional law when there is reasonable consensus over an issue but do we really need a Court that can effectively impose its preferences simply because there are five like-minded judges who sit on the Court? My proposal serves the interests of both political parties in the Senate.

The third objection to my plan is the hardest one to overcome. Change is always hard. I concede that both in implementation and effect, it shakes the brain to imagine a world where there are always an even number of conservative and liberal Justices on the Supreme Court. But there are precedents. The German Supreme Court, which is a constitutional court, has 16 Justices divided into two groups of eight with different jurisdictions. I am no international law expert but my understanding is that the Court works quite well.

Our own Federal Election Commission has six members, and by law no more then three can be of the same political party. No doubt the Commission is often deadlocked and has been criticized by many for its ineffectiveness. But there is a huge difference between the Commission and my proposed evenly divided Court. A deadlocked Court does not leave an issue unresolved. Instead, the issue is decided by twelve other courts made up of competent, life-tenured judges. Rather than this being an ineffective result, there are many benefits to having lower court judges in different regions of the country reach their own decisions on controversial issues of constitutional and federal law.

At the end of the day, there is a strong norm of comfort zone constitutionalism among constitutional law professors. Professor Tribe, for example, sent out a highly dismissive tweet about my Daily Beast essay suggesting that my ideas were "too silly to [be] taken seriously" and had "more fallacies than I can count." But he did not identify a single fallacy and completely failed to engage in further conversation about the issue.

Those in the business of commenting on the Court are used to and dependent on relying on the Supreme Court (which for the last decade effectively means Justice Kennedy) to resolve our hardest social and legal questions. But institutions do change. Both the President and the Congress exercise power now that would have been impossible for most people to conceive of only 85 years ago.

Under my proposal, the Court would still carry on the same way in most of its cases (only about 20% are decided 5-4). But its power would be somewhat less over our most divisive and difficult issues where the divides are purely ideological. But it is in exactly those cases where we may all be better off with a slightly weaker Court. I don't know whether my proposal in the long run would help liberals or conservatives, Republicans or Democrats. But I strongly believe it would promote the rule of law and make it more likely our Supreme Court would act like a real court and our Justices decide cases more like real judges.