Federal Courts and Nominations

Is an Eight-Member Supreme Court So Bad?

By Kimberly Strawbridge Robinson

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.

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.

Not Most Cases

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.

Lower Courts More Diverse

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.

Justice Kennedy’s America

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.

Coercive Judicial Orders

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.

Need Answers Now

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.

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