The 2016-17 Term: What a Court it Could have Been

By Eric Segall

If you are angry or worked up about the Supreme Court’s decisions this year, please raise your hand. That’s what I thought. Whether one is liberal, conservative or somewhere in-between, there are not many folks terribly upset about the 2016-17 term. Sure, some may disagree with the Court’s anti-historical free exercise decision in Trinity Lutheran, while others might argue over whether the lower courts’ injunction of the travel ban should have been kept in place in full or lifted altogether. Others might have wanted the Court to grant cert in a big gun case while others would have preferred the Court not to grant cert in the wedding baker case. But overall, compared to the last few (meaning like ten) terms, this last week of June is much calmer than previous years.

The title of Adam Liptak’s year-end review of term piece was “A Cautious Supreme Court Sets a Modern Record for Consensus.” The scholars and pundits quoted in the piece talked about how much agreement there was among the Justices this year even across ideological lines, and how the Court blazed little new territory. Professor Will Baude said in the Times that this “has been a quiet term and that is good for the country. Overall this year the Court has been the least dramatic and most functional branch of government.”

In between Justice Scalia’s death and the Trump election victory, readers of this blog know that I argued strenuously that an even-numbered politically balanced Court would in the long term serve the interests of both political parties and the American people. I suggested a legislative roadmap for how to get there (which I won’t repeat here), and summarized the benefits of such a Court in the New York Times, The Daily Beast, Salon, and on this blog. Here is some of what I said:

With four conservatives and four liberals divided along party lines, the justices will have to try harder to reach consensus and will likely decide far more cases … narrowly. The court sets an excellent example for the rest of government and the American people when the justices work hard to reach results both sides can live with (or at least can vote for), especially in our most controversial and important cases. [Additionally] there is one overwhelmingly positive byproduct of an evenly divided Supreme Court. There have been eras in American history when a court dominated by five or more liberals or five or more conservatives has been able to efficiently impose its personal and political agendas on the American people…. Regardless of where one stands on … controversial issues, if we are going to delegate them to a small governmental body composed of nine elite layers, we should insist on better checks and balances to make it just a little more difficult for that body to impose its will.

There are many more advantages to an evenly-divided Court but I won’t repeat them here. In my prior pieces, I also fully responded to the concerns about uniformity and tie votes that others raised, and won’t repeat those here. But I do want to say one final thing about this subject (really).

Many New Originalists such as Randy Barnett, Ilya Somin, and Evan Bernick argue that their form of originalism is much more concerned with getting the Constitution “right” than constraining judicial choice. I am not sure what exactly that means in the context of vague and open-ended constitutional text, but I do know that when five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist. Life tenure and having the final word make it difficult for the Justices to stay humble and modest about their views on hard constitutional cases. That temptation is one reason why scholars on the left, the right, and in-between are so preoccupied with developing theories of constitutional interpretation that will make it more difficult for the Justices to mistake their preferences for the law. I think everyone agrees, so far, no theory has succeeded. Structural change is the only realistic way of  cabining the Justices' discretion, and the data are in that a four-to-four Court succeeded in that task. Sure, it was only one term, but there is no reason to think the Justices would act any differently if the evenly divided Court were permanent.

Over the next few years, it is likely that the Court will turn hard right and dramatically cut back on what many on the left think are important personal liberties and federal powers. If history is a guide, there will follow a strong move back to the left with the Justices trying hard to make up for the decisions of the past. This zigzagging will place the Justices smack in the middle of our most important social, cultural, political, and legal disputes. It didn’t have to be that way. What a Court it could have been.