SCOTUS 4-4 Decisions Send Mixed Messages

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By Kimberly Strawbridge Robinson

March 29 — The Executive has weighed in. Congress—or at least individual members of Congress—have weighed in.

Even the American public has weighed in on whether the Senate should hold confirmation hearings for President Barack Obama's nominee to the U.S. Supreme Court.

Is the Supreme Court weighing in too?

The high court has already issued two 4-4 decisions this term, Hawkins v. Cmty. Bank of Raymore, 84 U.S.L.W. 4158, 2016 BL 87100 (U.S. March 22, 2016) and Friedrichs v. California Teachers Association, U.S., No. 14-915, 3/29/16 .

Because these evenly divided rulings aren't binding on all lower courts, some say that the court needs a full bench to do its job.

These evenly split decisions reflect “the reality that an eight-Justice Court will be unable to resolve significant cases,” Andrew Pincus, of Mayer Brown's Supreme Court & Appellate group, Washington, told Bloomberg BNA March 29.

But those split decisions could also encourage Republicans to continue to work to hold Justice Antonin Scalia's seat vacant until the next president takes office, Steven M. Klepper, of Kramon & Graham, P.A., Baltimore, told Bloomberg BNA March 29.

Politicians in Robes

The justices could be concerned about the impact of a protracted political fight over the Supreme Court vacancy.

“Roberts loathes the ‘politicians in robes' narrative,” Klepper wrote on the Maryland State Bar Association Litigation Section's Blog.

Recent confirmation hearings suggest that the “process is being used for something other than to assess the qualifications of the nominee,” Chief Justice John G. Roberts Jr. said Feb. 3—before Scalia's unexpected death—at the New England Law School, Boston. That has risks, he suggested.

“We don't work as Democrats or Republicans,” Roberts said. But that's the “unfortunate perception that the public might get from the confirmation process,” he said.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” Roberts said.

Hughes's Letter

Klepper thinks the Supreme Court, in particular, Roberts, should weigh in to jump start the confirmation process. And he said there is precedent for it too.

In 1937, Chief Justice Charles Evans Hughes wrote a letter to Senator Burton Wheeler refuting the “factual predicate for [President Franklin Delano Roosevelt’s] Court-packing plan,” Klepper wrote.

Hughes's letter responded to Roosevelt's “disingenuous[]” claims that the “demands of the Court’s work on the aging justices” required additional justices, Klepper explained.

“Hughes refuted Roosevelt’s claims that the Court was unable to keep up with its workload” and “posited that additional justices, or splitting the Court into panels, would make the Court less efficient,” Klepper said.

Klepper acknowledged that there “isn’t empirical data to show that the Hughes letter had a practical effect on the failure of the Court-packing plan in the Senate.

But it certainly did not help” the plan, Klepper said.

He suggested that Roberts could write a similar letter to “the chairman and ranking member of the Senate Judiciary Committee” that notes Roberts's opposition to the “politicization of the confirmation process,” and “the effect of the vacancy on the Court’s work.”

Subtle Nudge?

But it's unclear Roberts would take such a bold step.

Although Roberts said at the Feb. 3 event before Scalia's death that the current confirmation process “doesn't make any sense,” he said he couldn't see how the court itself could change it. It's certainly up to the Senate to “conduct the hearings as they see fit,” Roberts said.

But 4-4 decisions—especially in closely watched cases—could be the kind of subtle gesture from the court that would move confirmation hearings along.

“The role of the Supreme Court within the judiciary is to provide uniformity on difficult and important issues about which the lower courts might disagree,” Brian Netter, co-leader of Mayer Brown's Supreme Court & Appellate group, Washington, told Bloomberg BNA March 25.

“Whenever the Court divides evenly, it’s a problem, because uncertainty remains,” he added.

For example, the court's 4–4 decision in Hawkins left in place a circuit split over whether spousal guarantors can sue under the Equal Credit Opportunity Act .

Similarly, oral argument March 23 suggests that Zubik v. Burwell, No. 14-1418 might also come out 4-4.

This high-profile clash over the Affordable Care Act, contraception and religious freedom involves a circuit split that could remain unresolved if the court divides 4–4.

A 4–4 decision in Zubik would make the Affordable Care Act “mean different things in different parts of the country, with different rights for individuals based entirely on the federal circuit in which they reside,” Pincus said.

Such a high profile example of the court's inability to function could turn up the heat on Senate Republicans.

“The Justices are dedicated public servants, so they will try to do their best with a difficult situation, perhaps by attempting to reach consensus on narrower grounds than a case would otherwise call for,” Netter said.

For example, the court ordered supplemental briefing in Zubik March 29, signaling an apparent attempt to avoid a split decision .

“But there’s little doubt that they would prefer to have the full complement of Justices,” Netter said.

Fueling the Fight?

Split decisions could end up fueling the fight over the Supreme Court vacancy, Klepper said.

Referring to Friedrichs, which was a default win for public unions, Klepper said the split could encourage Republicans to hold out for a more conservative nominee .

Friedrichs “demonstrates just how much rides on the next justice confirmed to the Supreme Court,” Carrie Severino of the conservative Judicial Crisis Network, Washington, said in a March 29 statement shortly after the divided decision was handed down.

If the Senate confirms President Obama's nominee to the Supreme Court, “it will be creating a new liberal majority that will dominate the court's decisions for a generation,” she said. “The Senate should hold the line on letting the people decide what kind of court they want.”

Whichever way the court's split decisions push the political debate, the justices' preferences will likely remain unknown.

“By tradition, there are no separate opinions when the Court divides 4-4,” Netter said.

“It is inconceivable that a justice would write separately to urge the Senate to confirm a new justice, even if they all believe that it’s important to have a full, 9-justice Court,” he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Video of Roberts's talk at New England Law School at