Saturday, February 18, 2017

A 4-4 Talk in the Windy City

By Eric Segall

A brief inside baseball interruption for law nerds from the horrors of the real world and our nightmare-producing clown of a President.

I was at the University of Chicago on Wednesday defending my thesis that the Supreme Court should be an eight-person Court evenly divided among Democrats and Republicans. I was talking at a Judicial Behavior Workshop hosted by Judges Richard Posner and Frank Easterbrook as well as by Bill Landes, Lee Epstein and Dennis Hutchinson. Also in the room were such constitutional law heavyweights as Geoffrey Stone, Gerald Rosenberg, and Tom Ginsburg.  I had been told by folks who had been invited to the workshop before to expect serious grilling. The warning was accurate.

After I was introduced, I mentioned how flattered I was to be there when Lee Epstein asked me what specific problems I was trying to solve with my proposal. For the remainder of the ninety minutes, I fielded at least three questions at a time piled on top of one another. I felt like an outfielder trying to catch fly balls at batting practice with Ruth, Aaron and Mays all hitting to me at the same time.

I only mentioned one of my goals (making it harder for five or more Justices to impose their political ideology on the rest of us) when Judge Easterbrook jumped in. His main objection to my proposal, or at least the objection that he most frequently stated, was that he didn't think Republican and Democratic self-identification lined up with being liberal or conservative closely enough to justify the proposal. He kept pointing out that in my list of important 5-4 cases over the last 30 years Justices Stevens and Souter were often liberal votes, and they were both Republicans.

I thought I had addressed this point in my paper when I argued that the cries of "No More Souters" and "No More Kennedys" from GOP interest groups as well as Senators like Ted Cruz would make it highly unlikely that we will again see moderate Republicans on the bench. I also pointed to the work of several important legal scholars who have suggested that given the divided nature of our country today, it is likely that the Court will be divided on a partisan basis for the foreseeable future.  Neither of those points came close to satisfying Judge Easterbrook who, while being quite polite and even a tad warm, was steadfast in that "you will never, ever convince me kind of way." He is quite good at that look.

Geoffrey Stone had slightly more sympathy for my proposal, but he did not agree that there was a serious problem that needed to be fixed.  He argued that if you look at Supreme Court cases over the last 200 years, overall the court has done a pretty good job. Of course there have been some major mistakes along the way, he conceded, but he argued that our country is better off with a strong Supreme Court.  No matter how often I mentioned Dred Scott, The Civil Rights Cases, the 200 or so federal and state laws struck down by the Lochner Court (including Congress' prohibition of child labor), Citizens United, Shelby County, and District of Columbia v. Heller, Stone still insisted that Brown, Roe, and other cases justified faith in the Supreme Court. I am going to go out on an optimistic limb and suggest that Gerald Rosenberg, author of one of my favorite books on the Court, The Hollow Hope, agreed with me as he gave me sympathetic looks throughout much of my exchange with Professor Stone.

Judge Richard Posner, who doesn't like my proposal either, strongly disagreed with Professor Stone. As is obvious from reading Posner's remarks about the Supreme Court over the last few years, he does not have a lot of faith in the institution anymore.  Judge Posner mentioned that he liked Professor Turley's recent Op-Ed in the Los Angeles Times advocating for a 19-person Supreme Court.  Other people in the room then asked me what I thought about that idea. I responded that I liked it but there were serious transaction costs.  That's a lot of confirmation hearings to have over time.  And, can you really imagine reading an important decision with the number of concurring opinions a 19-person Court would likely elicit? How would we figure out the actual holding of a 7-4-3-3-2 split?

Professor Ginsburg and other people in the room were concerned about the effects of my proposal on lower court judges.  They wondered whether the confirmation hearings for those Judges would be much more intense and combative, and whether circuit judges might view their jobs differently knowing that the Supreme Court might tie four to four in highly contested cases. A graduate student also asked me whether my proposal would make it much more difficult for the Court to achieve finality (which is different than uniformity) in the kinds of highly charged cases likely to produce 4-4 splits.

These questions coming at me all at once gave me the opportunity to make three general and important points about my proposal. First, I responded that my plan needs to be compared to our current Court and actual legal system (where Justice Kennedy has been King for a long time) not some highly idealized version of that system. So even if the confirmation process for lower court judges might become more politicized than it currently is (which is a lot), that downside has to be compared to a new world where the partisan make-up of our highest Court is NOT mostly the result of death, illness, and politically timed retirements or ill-timed retirements. If Justice Marshall had lasted just one more year, for example, instead of deciding to retire a year before President Clinton was elected, we’d have no Justice Thomas, and therefore no Citizens United, Shelby County, and Heller, and Professor Stone would be even happier with the Supreme Court. But the randomness of how we structure the Court is truly crazy and needs to be fixed. The obvious solution, ending life tenure, requires a constitutional amendment, whereas my proposal does not.

I also argued that if lower court judges decide to play fast and loose with Supreme Court precedent (as the Fifth Circuit did in the recent Texas abortion controversy) it is extremely likely that the Justices will shut them down even if it means one Justice voting for a result that possibly he or she would not have joined in the first instance. That effect would likely improve respect for stare decisis and the rule of law, another benefit of my proposal.

The finality point is a good one. My response was that we have little finality now in major areas of constitutional law, and if this is a major concern in an important case, the Justices will find a compromise and narrow way to get there. Just last week, Chief Justice Roberts mentioned in Kentucky that the Justices have been having longer conferences and talking since Justice Scalia passed away. I also argued that the Court has issued some final decisions (like Roe) that had major unintended consequences, and that my proposal would make it harder for the Court to err in that direction. As Justice Ginsberg has stated, the Court made a major mistake by deciding the abortion issue “in one fell swoop” (yes that decision was 7-2 not 5-4 but those kinds of lopsided votes in major cases are largely a thing of the past).

By the end of the talk, it was clear that no one in the room was willing to embrace my proposal (at least out loud) but that possibly I had achieved one of the goals of my paper and this entire year long project. Even if I can't get people to agree with requiring a 4-4 split (though some have), or agree but think it will never happen, sometimes academics (I hope) are allowed to present ideas that may shine new or different light on existing problems and institutions. I'd like to think I accomplished that in the Windy City.


Joe said...

"Dred Scott, The Civil Rights Cases, the 200 or so federal and state laws struck down by the Lochner Court"

Dred Scott was 7-2 and The Civil Rights Cases was 8-1, so if we count them, they amount to the establishment at the time (skewered somewhat in Dred Scott because of how circuit riding etc. lead to a Southern Court) stating their views.

The "200" number is misleading (see, e.g., "A Tale of Two Lochners" by Victoria Nourse), but even there, there was some "establishment view" (helped by conservative Presidents and a pre-17A Senate) in there too. How a 8 member Court really would handle this is unclear.

But, my hesitance is belabored at this point. I think the idea is worthy of debate and welcome you apparently leading the way here.

Howard Wasserman said...

Glad I'm on the same page as Tom Ginsburg regarding effects on lower courts. Although I think the issue is less their playing fast-and-loose with SCOTUS precedent and more an increasing use of broad injunctions, through which one lower court binds the nation, feeling safe from review.

The finality point is significant only if one rejects departmentalism in favor of judicial supremacy. There is no "finality" when there could be a constant back-and-forth over constitutional meaning between courts and other branches.