September 28, 2016


Benefits of an Evenly Split Court Will Become Apparent (Eric Segall, MAY 18, 2016, NY Times)

Most Supreme Court disputes do not result in 5-to-4 decisions but in those that do, the median justice -- for 10 years now Justice Kennedy -- gets to impose his views on the rest of the country. With a deadlocked court, the justices will try harder to find common ground and issue narrower decisions as they did in Monday's contraception case, and as they did in an important class action case that day where the court didn't say much that changed the law or the outcome.

As time goes on, and the justices have to compromise more -- a skill they might find useful in the future -- the American people may find that they don't need a single nine-member court to solve the country's most disputed legal questions. If the justices are unable to reach a consensus, court of appeals judges around the country would have the final say on divisive issues. These courts are made up of judges who are far more politically, geographically and educationally diverse than the Supreme Court justices, and in many cases different answers in California, New York and Texas may well represent the best solutions. In the unusual case where national uniformity is essential -- such as in some economic cases where a rule, even a bad rule, is better than no rule at all -- the justices will likely find a way to come together for uniformity's sake.

A five-member conservative or liberal majority on the Supreme Court can impose a partisan political agenda on the country without too much difficulty, often with one key justice dictating the results. With eight justices equally divided among conservative and liberals, the court can only act decisively when at least one justice switches sides. This is a state of affairs to be celebrated, not lamented, and may be appreciated when the court is fully staffed again.

Posted by at September 28, 2016 4:39 PM