There has been an avalanche of essays, articles and blog posts discussing Justice Scalia’s successor. The current vacancy is much more important than most prior empty seats because the Court, for the first time, is divided four-to-four among Democrats and Republicans with the most conservative Democrat (Breyer) being more liberal than the most liberal Republican (Kennedy). The Republican controlled Senate, therefore, is understandingly terrified about a five-to-four liberal court reversing conservative precedents on guns, campaign finance reform, separation of church and state and affirmative action (among others) while Democrats are positively giddy about the possibility of the first liberal majority on the Court in decades. The result of this partisan frenzy is the current stalemate.
Some Court watchers and politicians favor the Senate’s refusal to hold a confirmation hearing for President Obama’s nominee Merrick Garland while others lament the intransigence as a breach of trust and even (though not persuasively) the Constitution. Not surprisingly, these commentators and politicians divide mostly along partisan lines indicting yet again the political nature of the Supreme Court. If the political parties holding the Senate and the President were reversed, the two sides would almost certainly flip-flop on the necessity of replacing Justice Scalia sooner rather than later.
Contrary to the views of most politicians and scholars, the current situation, with an eight person Court equally divided among Democrats and Republicans (and conservatives and liberals) is actually a very good thing. In fact, there are compelling arguments that maybe we should stay with an equally divided 4-4 Court for as long as possible.
Under our current system, Republicans constantly complain about Supreme Court Justices imposing their political and personal preferences instead of just “following the law,” whereas Democrats constantly complain about Supreme Court Justices doing the political bidding of the Republican Party whenever the Court has a majority of GOP Justices, which has been the case for most of the last fifty years. If we could lock in a system where there were always eight Justices divided along party lines, both political parties and the American people would benefit.
First, with eight Justices equally divided between the two major political parties, the winning side must convince at least one Justice to side with Justices from the other party to form a majority. Over time, this requirement would lead to more public confidence in the final outcomes and also likely generate more moderate arguments and decisions (which is a good thing given that the Court is composed of life tenured, elite lawyers who the people don’t elect and cannot vote out of office).
Second, with eight Justices divided along political party lines, it will be much harder, though certainly not impossible, for the Court to overturn decisions by more accountable governmental officials. The Court could still play an important role as many of its historic decisions would not have been affected by an even number of Justices. For example, Brown v. Board of Education was 9-0, Roe v. Wade was 7-2, and Reynolds v. Simms (one person-one vote) was 8-1. But with only eight Justices, there will be none of those obviously partisan 5-4 decisions that sharply divide the country such as Citizens United (campaign finance), District of Columbia v. Heller (guns), and Shelby County v. Holder (voting rights). That is not to say that there won’t be divisive 5-3 decisions or even 8-0 decisions but at least in those cases the votes can’t be purely along party lines.
Third, constitutional law is tricky business to say the least. Most constitutional disputes involve ancient and vague text, contested historical accounts concerning that text, and fuzzy precedent. One does not have to be a hard core legal realist to believe that personal values, politics, and ideology play a prominent role in Supreme Court cases. Having an equally divided Court over time would likely reduce the infection of politics and personal values in the Justices’ decisions because to accomplish their goals, the Justices would simply have to get along better.
The first response to this idea will be centered around the overriding modern assumption among most Court commentators that the number of Justices has to be an odd one so that the Court can act in cases where the Justices are tied four-to-four (though the original Court only had six Justices). That assumption, however, assumes that it is in the interest of the American people for a current political majority (liberal or conservative) on the Supreme Court to have an effective means to carry out its partisan political agenda. That assumption is unwise.
We should not fool ourselves into believing that the Court does not have a political agenda based on the politics and values writ large of the Justices. Studies have shown that conservative Justices usually vote conservative and liberal Justices normally vote liberal. Moreover, Republican Justices usually vote in ways that favor the Republican Party and Democratic Justices generally vote in ways that serve the Democrat Party (of course there are exceptions but this partisanship is a clear pattern and appears to be getting worse).
Currently, the partisan makeup of the Court depends mostly on the happenstance of how long the Justices live, when they decide to retire, or a combination of those two events. As many critics of life tenure have argued, however, the political stakes of who sits on the Court should be too high to leave its composition to chance and politics. But changing life tenure requires a constitutional amendment whereas maintaining the current status quo does not.
The second likely argument against maintaining the status quo is that there would be many four-to-four decisions, and when that tie occurs, the lower court opinion would stand, there would be no precedent, and the result would be the same as if the Court had denied certiorari in the case in the first place. This kind of deadlock happened earlier this term with an important case involving public unions and the first amendment. People will claim that when the Court is equally divided, the courts of appeals will have the final say as to the interpretation of federal law, both statutory and constitutional, and that is bad for the country.
There are several responses. First, even now the Court only hears 75 cases or so a year giving the courts of appeals effective final say in most areas of federal law. Judge Richard Posner made this point in a debate that he and I had over whether Supreme Court Justices do their jobs differently than lower court judges in any way that matters. Posner pointed out that the Court only reviews “one tenth of one percent” of lower court cases and thus lower courts “already have the last word in most cases.”
But, one may argue, what about those nationally important cases where we need the Court to rule on a national basis for the good of the country? If the Court ties four-to-four in those kinds of disputes, we will all be worse off. This argument assumes that the Supreme Court is better able to decide such cases than court of appeals judges or that there is a strong need for national uniformity in such cases or both.
The courts of appeals hear cases through three-judge panels but there is always the possibility of en banc review consisting of all active judges in the Circuit. The Circuits are of varying size, but all but one have more than nine judges. For example, the Fifth Circuit covering Texas, Mississippi, and Louisiana has 17 active judges; the Seventh Circuit covering Illinois, Indiana and Wisconsin has 11 active judges, and the Second Circuit covering New York, Connecticut, and Vermont has 13 judges. The partisan balance on these courts shifts depending on who has been President in the recent past and how long the judges serve but, given life tenure, it is unlikely, absent two or more consecutive two term Presidents from the same political party, that there won’t usually be a healthy political balance among and between the circuits. That is emphatically not true of the Supreme Court where a simple five-to-four majority can have major consequences for the country as the current confirmation battle vividly demonstrates. Dispersing decision-making authority in important cases among highly qualified judges of both political parties would not necessarily produce worse decisions and may well produce better ones.
But is there a compelling need to have an odd-numbered Supreme Court to make sure that both federal statutory and constitutional law remain uniform throughout the country? As I mentioned earlier, the Court only hears about seventy-five cases a year now and many of those cases will be important but not for uniformity sake. Moreover, if uniformity is a compelling need in certain cases, and the Justices are divided four-to-four, it is likely that they will try hard to reach some kind of consensus or moderate agreement to resolve the dispute as is happening right now with the Obamacare contraception litigation. This is emphatically a good thing and must be balanced against the very few cases where uniformity is important and the Justices are deadlocked four-to-four with no way out.
Just as the Justices say that they often respect precedent they don’t personally like if there has been strong reliance interests, they may also compromise their bottom line personal leanings in cases where a strong need for uniformity requires a final decision. That potential (I would argue inevitable) compromise is a positive thing that might reduce the political partisanship of the Court’s decisions.
Although personal values will always contribute to Supreme Court decision-making, the currently high level of nakedly partisan votes in many cases is not inevitable. Moreover, it is folly to continue to allow chance, death, and politically timed retirements to create political imbalance on our nation’s highest Court. Maybe the Congress and the next President just get together and try to figure out a way to maintain an equally divided (as a matter of political party affiliation) and even-numbered Court. If such a solution could be reached, our Supreme Court might act a bit more like a court and its Justices more like judges.