Sunday, October 16, 2016

Divided Government is Great so Why not for SCOTUS

By Eric Segall

I am excited to be giving a talk tomorrow at Indiana University on my proposal that the Senate do what it can to make permanent our current eight person evenly divided Supreme Court. I’ve already written a lot about this idea but, in thinking more about it for my presentation, came up with yet another reason why this solution makes a lot of sense. Although the analogy is not perfect, it says a lot. Divided government has major benefits many of which apply with equal force to the Supreme Court.

One of the bedrock principles underlying our Constitution is that separated (and shared) powers protect liberty while also allowing our leaders to act effectively when the need arises. Not only do we have three branches of the federal government but we also disperse power vertically between the national and state governments. In the words of James Madison, “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

More often than not, and whether consciously or not, over the last half-century the American people have chosen to divide the national government along partisan lines as well. In 40 of the last 48 years, no single party has controlled both Houses of Congress and the Presidency. The only exceptions were two three-year periods following the Watergate scandal and the tragedy of 9/11, and the first two years of the Obama Administration.

There are many advantages to dividing power in this manner. In a divided government, it is much harder for political officials to enact controversial and divisive legislation, more difficult for them to unite behind a politically inspired but unwise war, and, perhaps most importantly, more likely that beneficial legislation will be effective and maintained because it has, by definition, bi-partisan support.

Many of these same principles and advantages support an evenly-divided Supreme Court (like the one we have today with four Republicans and four Democrats). As I’ve written before, the core issue in every constitutional law case that comes before the Justices is under what circumstances they should impose a national rule on all fifty states, the Congress, the people, the President, or often all of the above.

Although we are now used to the Justices opining on virtually all of our most difficult legal, moral, and political questions, the Court should only impose its will and displace decisions by other political actors, when the Constitution requires it. Unfortunately, many constitutional cases involve hopelessly vague text, contested history, and shaky precedents, thereby making it easy for people to reasonably disagree on how such cases should be resolved.

Allowing five or more Justices to efficiently impose their will whenever they want to has led to many unfortunate periods in American history when out-of-touch Justices imposed personal value judgments not supported by law on the rest of the country. For example, from 1900-1936, the Court struck down over 200 state and federal laws dealing with work place conditions and safety as well as our local and national economies in cases that most people now think were incorrectly decided.

A better system would allow the Justices to exercise their power of judicial review only when there is at least some bi-partisan support among the Justices for their decisions. There are at least three compelling reasons for such a rule.

First, we want to be sure that when the Court does overturn political decisions made elsewhere there are substantial reasons for that reversal beyond pure ideological disagreement. Second, when the Justices cross ideological lines in politically charged cases, their decisions will likely be better received by the public and less likely to be changed or whittled down over time by future Justices, all of which serves the interests of consistency, fairness, and the core rule of law principle that similarly situated litigants should be treated similarly. Under our current regime, the Justices have changed their collective minds in virtually every area of litigated constitutional law from free speech to freedom of religion to the commerce clause to federalism to the separation of powers. These pivots, backtracks, and outright reversals reveal with stark clarity that ideological divides often explain the Court’s 5-4 decisions much better than legal principles or logic.

Third, if the Congress were to permanently set the Court at 8 Justices (the Constitution requires no number) with a required 4-4 partisan balance, the Justices would know that to maintain their power and influence over time, they would have to deadlock in fewer cases because when such a tie occurs, the lower court decision retains full legal effect. This reality would inevitably lead to more consensus decision-making and narrower opinions by the Justices who would have to be more modest and cautious. Just like with all divided governments, the advantages of avoiding tyranny, in this case the tyranny of five or more ideologically similar but unelected life-tenured Justices, are significant.

          Where the Justices do deadlock, the final decisions would be made by court of appeals judges who certainly also decide politically charged cases with the same ideological biases as the Justices. But dispersing this power among hundreds of lower court judges who are much more diverse educationally, geographically, politically, and socially than nine Justices sitting in Washington, D.C., would reduce the ill effects of rule by one small group of judges/politicians who today wield such great power.

The two major objections to this proposal are that it impairs the uniformity of federal law and that there is no effective way to insure over time that the Court remains ideologically balanced. I respond to both below but with the caveat that my proposal doesn’t have to be perfect, which it is not, just superior to our current method of selecting Supreme Court Justices.

Over 99% of federal cases never reach the Supreme Court and thus do not implicate the uniformity interest. Of the only seventy-five or so cases that the Justices do decide to hear every year, approximately 80% are decided by at least 6-3 majorities and about 50% by unanimous votes. Of the remaining 15 cases or so that are decided 5-4, many do not involve issues of uniformity. Thus, the uniformity objection is vastly overstated, especially when compared to the many advantages of an evenly-divided 4-4 Court outlined above.

Moreover, if uniformity in a particular case is absolutely essential, the Justices will almost certainly find a way to reach agreement. If the country badly needs a rule or a final decision, even a rule or result one or more of the eight Justices doesn’t agree with, it is extremely likely the long term institutional concerns of protecting the Court and the country will trump the Justices’ ideological preferences, and that is exactly how it should be.

This proposal could be implemented in a bi-partisan manner by the Congress without too much difficulty and without a constitutional amendment. First, both the Senate and the House would have to set the number of Justices at 8 or any even number. Then, the leaders of both parties in the Senate could announce to the President that he or she has the constitutional prerogative to nominate whomever he or she wants, but the Senate will only confirm a nominee of the same political party as the retiring or deceased Justice. This procedure could be supplemented with a rule that if the President nominates someone whose party affiliation is unknown, or is an independent, such a nominee will be approved upon a ¾ vote of the Senate.  Such bi-partisan agreements about Senate procedures are common as the long history of the filibuster and the blue slip procedure demonstrates. Of course, there is no way to insure future Senates would play by the same rules, but that is true for many aspects of the nomination and confirmation process.

This process would have the additional benefit of likely producing more moderate nominees to the Court, such as White, Blackmun, Stevens, and Souter because at times Presidents will have to nominate Justices from the opposing political party such that liberal republicans and conservative democrats will be the likeliest candidates. Americans of all political stripes benefit from having more moderate Justices on the bench who are not clearly aligned with either the far left or the far right. Sometimes a Justice may veer far away from the politics she started with, but that happens with our current process.

Divided government brings many benefits, especially if it also allows government officials (or judges) to act efficiently when necessary. A permanent 4-4 evenly divided Court would leave the Justices with all the tools they need to maintain both the uniformity and supremacy of federal law without arming the Court will the ability to impose pure ideological agendas over long periods of time No matter what happens on Election Day, the Senate should strongly consider adopting rules to make it more likely we will forever have an ideologically divided Supreme Court.


Michael C. Dorf said...

Putting aside the merits of the proposal, it strikes me as a non-starter due to polarization. From the Democratic perspective, institutionalizing the 4-4 split would legitimate a wholly illegitimate tactic of the Republican Senate: failure to hold hearings on Judge Garland's nomination. From the Republican perspective, there are no moderates, just conservatives and others. Look at your list: White, Blackmun, Stevens, and Souter. White was a Democrat who proved to be conservative on most issues (other than civil rights), while Blackmun, Stevens, and Souter were/are Republicans who proved to be liberal on most issues. Accordingly, I regard Prof. Siegel's various pieces championing an 8-justice equally divided Court as a thought experiment rather than a practical proposal.

Xodus said...

How would this 8-member court resolve "political" circuit splits on national legislation/regulation? Example would be something like the PPACA individual mandate litigation. This seems very likely to produce 4-4 splits and therefore inconsistent federal law. Is the solution simply hoping that one justice from either block will defect to the other side a la Roberts?

In that case, the pressure to have a defector seems like it would simply lead to an elaborate game where presidents try to sneak a liberal disguised as a Republican (or vice versa) through the confirmation process and not nominate actual moderate justices.

Joe said...

"For example, from 1900-1936, the Court struck down over 200 state and federal laws dealing with work place conditions and safety as well as our local and national economies in cases that most people now think were incorrectly decided."

Victoria Nourse* discussed this period in an article on Lochner and argues this counting is somewhat confused. As a whole, the Court then as a whole was more likely to uphold laws except for a narrow class. And, judicial review is going to result in some laws being struck down. Many of those opinions were not 5-4. So, some supermajority test was met.

Seven or so laws a year isn't exactly a lot either. The justices also were appointed by Presidents and confirmed by the Senate. They appeared to be in effect voicing a certain norm of the times. Finally, the reach was limited and temporary.

I think Prof. Dorf's comment underlines a basic problem here even if the thought experience in a vacuum has validity. Still, it has a limited value since only a narrow number of cases are 5-4, some of them aren't really that important and others split in different ways (formalist v. non-formalist etc.).

Meanwhile, a 4-4 bench, including its weakened role in applying judicial review has its own limitations. The second comment is an example of that in a fashion. A norm where the justices are split conservative/liberal/moderate seems more appropriate and perhaps workable. Also, term limits or a norm where justices are older. Garland works on multiple levels there.


* I enjoyed her book on Skinner v. Oklahoma. Also of some note, she was blocked by the Republicans when nominated for the court of appeals. David Bernstein, a conservative who wrote a book on Lochner, signed a letter opposing the filibuster.

Kaelik said...

I question the claim that the American people choose to have divided government in 2012, when more people voted for Democratic Senators and House than Republican.

Once you accept that there exists two consecutive presidential elections where the American people choose united government (regardless of if they got it), you have to question whether off year elections are really the American People choosing divided government, since they aren't even choosing a president, and the people choosing the House are the same people who choose the loser of the last presidential election.

Basically, I don't see anyone actually choosing divided government. Probably any argument that assumes that people love this divided government isn't going to support your conclusion anyway, since the premise is wrong.