Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
May 23 — An eight-member Supreme Court over “an extended period of time is harmful to the proper functioning of the Court and to the nationwide rule of law,” a May 20 report by progressive groups People for the American Way and the Constitutional Accountability Center said.
The court has been short staffed since Justice Antonin Scalia passed away Feb. 13. Senate Republicans have vowed to hold off confirmation hearings until the next president is in office (84 U.S.L.W. 1719, 5/19/16).
But the current eight-member court might not be so bad, according to Georgia State University College of Law professor Eric Segall.
He told Bloomberg BNA May 19 that an even-numbered court can force the justices to compromise in close cases, rather than be held up by a single justice.
But that's not what's happening, Elizabeth Wydra, of the Constitutional Accountability Center told Bloomberg BNA May 23.
Instead, the court is just kicking legal issues down the road for when the court is back up to full force, she said.
Many parties before the court need answers now, Wydra added.
Segall emphasized that an eight-member Supreme Court is only a potential problem in cases that would have been decided 5-4.
Because most cases aren't 5-4, an eight-member Supreme Court will still decide most cases before it.
In “the years since World War II, however, an increasing number of important legal controversies have closely divided the Supreme Court and have been resolved by 5-4 rulings,” the May 20 report said.
“By the end of the last full Term (2014-2015), 22% of the rulings over the first ten years of the Roberts Court were 5-4 splits.” These include cases on voting rights, abortion, campaign finance and same-sex marriage, the report said.
An eight-member court risks being evenly split, which leaves “the lower court decision in place, but set[s] no national precedent,” the report said.
That's already happened this term. In particular, one 4–4 split left in place a circuit split over marital discrimination under the Equal Credit Opportunity Act, Hawkins v. Cmty. Bank of Raymore, 84 U.S.L.W. 4158, 2016 BL 87100 (U.S. March 22, 2016) (84 U.S.L.W. 1417, 3/31/16).
Segall said an evenly split court isn't great, but it isn't terrible either.
The 5-4 cases typically involve significant social issues, Segall said. Those issues are the least suited to having nine justices decide for the entire country, he said.
A 4-4 split sends the issue back to the courts of appeals, which have hundreds of judges, and hundreds of diverse perspectives, Segall said.
He acknowledged that there might be economic issues that do require a national rule that is applied the same in all areas of the country.
But in most cases, if we can't get five of eight justices to agree on the correct outcome in these important cases, isn't it better to send it to the courts of appeals, which is much more diverse than the Supreme Court, Segall asked.
It's also better than the alternative: letting one justice decide, Segall said.
Justice Anthony M. Kennedy has been in the majority in 5-4 cases more than 80 percent of the time over the last decade, Segall said.
That's a lot of power for one man to have, he said. Because the four other justices in the majority have to cater to Kennedy, we're all living in Justice Kennedy's America, Segall said.
Segall also said that an eight-member court can force the justices to work hard to get consensus.
As an example, he pointed to the court's recent decision involving the Affordable Care Act's “contraceptive mandate” as applied to religious non-profits, Zubik v. Burwell, 84 U.S.L.W. 4257, 2016 BL 154895 (U.S. May 16, 2016) (84 U.S.L.W. 1687, 5/19/16).
If Scalia hadn't passed away, the court likely would have split 5-4 in that case, with Kennedy in the majority, Segall said.
Instead, the court sent the case back to the courts of appeals so that the parties could attempt to work out a compromise, he said.
That's much more desirable than a coercive judicial order, Segall said.
But Wydra said it isn't desirable to compromise because the court can't come to an agreement.
Moreover, she said that's not what's actually happening.
Wydra said the court didn't compromise in Zubik; it just punted the case for a future court.
That might be good for lawyers, but it's difficult to see the benefit of an eight-member court if you are the one whose fundamental rights are at issue, Wydra said.
Wydra noted that a 4–4 split in the challenge to President Obama's deferred action immigration program would leave in place the lower court's ruling finding the program unlawful, United States v. Texas, U.S., No. 15-674, argued 4/18/16 (84 U.S.L.W. 1557, 4/21/16).
It's little comfort to those that might be ripped from their families to say that a future court might be able to come to a decision, Wydra said. These people need answers right now, she said.
To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Jessie Kokrda Kamens at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)