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Geography and Law in the Evenly Divided Court

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Is that flag at half-staff for Scalia or for the future of the American court system?

A couple of people in the Friedrichs posts yesterday were saying, “hey, this divided court thing ain’t too bad.” Well, that’s true so far as it goes. But it also causes a lot of problems. Among them is that because 4-4 splits just revert to the relevant circuit court without precedent, law begins to be divided by geography, creating potential long-term problems. Dayen:

Unlike a majority Supreme Court ruling, a 4-4 split doesn’t make binding precedent for the entire nation; it just upholds the ruling of the circuit court of appeals where it was decided, in this case the 9th Circuit. A separate challenge from another circuit court could produce a different interpretation of the law, and if the Supreme Court remains deadlocked, the same issue could have different legal outcomes in different parts of the country.

This is already happening. A case about giving gender-discrimination protections to spouses of borrowers of bank loans produced a 4-4 tie last week. The 8th Circuit had ruled that the bank didn’t have to extend Equal Credit Opportunity Act protections to spouses, and the Supreme Court affirmed that ruling; but the 6th Circuit separately made a different one, saying that spouses are eligible. So if you take out a loan in Missouri, jurisdiction of the 8th Circuit, you can legally be treated differently than if you take one out in Michigan, home of the 6th.

Theoretically, at least, this situation favors Democrats. Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority.

Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future. Whether you see that as a good thing depends on how you feel about current law in a particular area. It likely means continuing to allow corporations and wealthy individuals to make unlimited donations to super PACs in line with the Citizens United ruling. It also means maintaining a woman’s right to choose in line with Roe v. Wade.

However, in cases with unsettled law or unique addendums, the regional Supremes can make very consequential rulings. For instance, in Whole Woman’s Health v. Hellerstedt, the 5th Circuit ruled last year that Texas’s regulations for abortion providers—including requirements that abortion doctors have admitting privileges to hospitals and that facilities maintain the same standards as surgical centers—didn’t impose an “undue burden” to getting an abortion and were therefore legal. If the Supreme Court splits 4-4 in the case, which it heard earlier this month, that ruling would be upheld for Louisiana and Mississippi as well as Texas, limiting abortion access for millions of women.

In the short-term, this might not be a huge deal. Were this to go on for years, as Dayen says, it would be a disaster for the nation.

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  • I don’t see the looming disaster here. Laws are generally different in different states, because legislatures made them different. If the constitutional regime also differs in some respects by geography, I don’t see why that’s substantively different. There are plenty of laws I might not like that apply in Georgia but not in Connecticut already. That’s better than a SC forcing bad laws on me in CT.

    • If you can’t see the long-term problem that federal law and the Constitution would be legally interpreted differently depending on where you live, I just don’t know. That’s a huge, enormous, unmitigated disaster for a stable nation.

      • Denverite

        I’m with Cervantes. That’s the way it is now. State law varies by state, state constitutions are different (and even similar ones are interpreted differently), and a lot of circuit splits exist for a really long time before they’re decided. I just checked, and a split I briefed in 2003 is still around.

        As long as people know what the law is in the circuit they’re in, it’s not a disaster. (Now, the law itself might be a disaster from a policy perspective, but I don’t take that to be what you’re arguing.)

        • Thom

          True re variations in state law, but the whole point of a federal constitution and laws, especially after the 14th amendment, is that federal law is supposed to be the same throughout the union. Erik is pointing out how this might cease to be the case in the short run. Although variations in state law can be significant, that is an expectation of the system. This would be an aberration.

          • This case isn’t about federal law, it’s about state law.

            • Thom

              I was reacting not to the specific case, but to what Erik said,

              the long-term problem that federal law and the Constitution would be legally interpreted differently depending on where you live

              . Even when cases are “about” state law, there is sometimes a federal constitutional issue, as in abortion cases.

              • Well yes, but abortion, for example, used to be legal in some states and not in others. That was bad if you wanted it to be either legal or illegal everywhere, but the fact that the laws differed was not ipso facto a problem. Today you can smoke pot in Colorado but not in Connecticut. You might prefer it all one way or the other but the mere fact that it is not is beside the point.

                • Aaron Morrow

                  I think there’s a difference between laws varying by state and making our Constitutional alienable.

                  I agree that it’s not a problem yet. I expect that the President elected this fall will share a party with the majority of Senators, who will eliminate the filibuster on Supreme Court appointees as necessary.

                • AMK

                  There has to be a certain amount of sub-national flexibility in order for a country as big and diverse as this to function. That’s just the way it is.

                • Aaron Morrow

                  There has to be a certain amount of sub-national flexibility

                  “A certain amount” being defined as within Constitutional limits? We all agree with that.

                  “A certain amount” being defined as overruling the Constitution? That’s what we’re arguing about.

                • Denverite

                  “A certain amount” being defined as overruling the Constitution? That’s what we’re arguing about.

                  I don’t get this. Already, today, I bet there is significant variation in how the US Constitution is interpreted and applied at the circuit and state supreme court levels on any number of issues. Is that “overruling the Constitution”?

        • sneezehonestly

          Even in cases involving state law, it would eventually be a disaster if big issues involving the federal Constitution, and whether or not state laws violate the federal Constitution, are perpetually unresolved. It’s one thing if a circuit split makes an obscure provision of a federal statute mean something different in New Mexico than it means in Texas — but it’s an entirely different thing if the First Amendment or the entire concept of Due Process mean something different. At some point, the United States stops functioning as a single country and becomes something more like a loose collection of states grouped randomly by circuit.

          • AMK

            if the First Amendment or the entire concept of Due Process mean something different.

            That’s how it’s been for most of American history. If we wanted to change it, we would have needed to keep the South under military occupation of 60 years: shoot all Confederate officers and property holders, eradicate Southern Baptism as thoroughly as Judaism in Poland, and create a national program for settling all new immigrants in the south and west to dilute the cracker element into political insignificance. Obviously none of that was ever going to happen, so here we are.

        • AMK

          I second/third/fourth this. “Law divided by geography” is pretty much the definition of federalism, which you need in order for a country as big and diverse as this to function–especially as the country becomes ever more polarized by geography in the immediate future.

          I’m no “originalist,” but the country was founded on federalism as a core principle…nobody wanted a Westminster-style sovereign parliament with unlimited power at every level, for the same reason that nobody wanted a President with unlimited power. The Supreme Court process has become such a clusterfuck in the past generation because in an increasingly polarized country, everyone realizes that it is the one institution that has virtually unlimited power.

          • sneezehonestly

            But the situation we’re talking about doesn’t really devolve power to the state level; it devolves power from the Supreme Court to the circuit courts. It’s one thing to argue that the states should have the power to set their own law in certain areas, and it’s an entirely different thing to argue that federal circuit courts, instead of the supreme court, should be the final arbiters regarding the constitutionality of state laws. It just doesn’t make sense to have a united country where Texas is free to essentially prohibit abortion but California, even if it wanted to, could not prohibit abortion. Sure, it’s possible to run a country this way, but it’s not sustainable in the long run.

            • sneezehonestly

              To put a finer point on it, it’s important to distinguish between cases that treat individuals differently depending on which state they live in versus cases that treat the states themselves differently.

              For example, a circuit split regarding the Federal Tort Claims Act could create a situation where a pedestrian struck by federally owned vehicle could sue in California, but could not sue in New York. This is strange, but it doesn’t threaten the entire nature of our national government.

              On the other hand, a circuit split regarding due process or the right to privacy could create a situation where the state of California itself was prohibited from passing a certain law, while the state of New York would be entirely free to pass an identically worded law. Once some states are more constrained by the federal courts than other states, the entire basis of federalism starts breaking down.

          • Joe_JP

            “Law divided by geography” is pretty much the definition of federalism

            A basic point of the Constitution was to give more power to the national government because “law divided by geography” wasn’t working in certain ways.

            So, there is one rule protecting certain rights, certain uniform federal laws etc. Other things are left to local discretion.

            The Supreme Court process has become such a clusterfuck in the past generation because in an increasingly polarized country, everyone realizes that it is the one institution that has virtually unlimited power.

            Everyone doesn’t realize this because one institution doesn’t have virtually unlimited power. The Supreme Court had a lot of power in the past. A core problem today is overall political polarization, not that in the 1930s that the Supreme Court was just weak or something.

            Federal power as a whole is broader now so each branch has more power but that will be true regardless. And, the Supreme Court doesn’t suddenly have a police force or power of taxation etc. to give them this alleged “unlimited” power.

            • AMK

              Well in theory Congress can of course work around the Supreme Court by just crafting laws on major issues (for example, voting rights or campaign finance), but in an increasingly polarized country where national-level gridlock is the norm, that does not happen….and everybody knows it. The result is a court with de facto unlimited power.

              And the Constitution gave the national government more power than the Articles of Confederation did, but not unlimited power; and “national government” meant Congress and the President. Judicial review for the Supreme Court was not established until after the Constitution was operating.

              • Joe_JP

                The courts have limited power — they don’t have the power of the purse or sword.

                Also, Congress isn’t the only party here. At any rate, the courts don’t have some de facto unlimited power to have each branch of government do whatever they want.

                Who is saying the national government should have unlimited power? We are debating degrees here. You didn’t refute my point — there are certain things where there are universal national rules. Interracial marriage, e.g., isn’t to be allowed some places and not others.

                Judicial review arises from basic constitutional principles. It was cited by state judges before we had a Constitution and was generally understood before Marbury v. Madison. For example, Jeffersonians tried to use the courts to hold a carriage tax unconstitutional in the mid-1790s. The justices upheld the tax but didn’t refute the general principle.

                • AMK

                  Interracial marriage, e.g., isn’t to be allowed some places and not others.

                  Interracial marriage was allowed in some states but not others for a very long time. It was still outlawed in the entire Confederacy before the unanimous Loving v. Virginia decision in 1967, while some states (PA, OH, MA, MI, ME, IL) had repealed their anti-miscegenation laws before 1887…even as the Supreme Court unanimously upheld the legality of state anti-miscegenation statutes in 1883 (Pace v. Alabama).

                  So in other words, the people in those northern states were already at least 80 years ahead of every justice on the Supreme Court (to say nothing of the southern states). Should they have had to wait decades for 5 justices to catch up to them? What if sometime between 1887 and 1967, there were 5 justices in favor, but one died and was replaced by one not in favor?

                  The point is that federalism helps protect good ideas at least as much as it helps perpetuate bad ideas.

        • sharculese

          I don’t like the way it is now and I don’t want to see it imported into areas where it doesn’t have to be.

        • Katya

          I’ll second the point about circuit splits enduring for a long time. To use the example I dealt with most recently, the circuits all have different standards for the introduction of evidence under Rule 404(b) of the Federal Rules. At least one circuit has affirmatively rejected its old rule, which is still operative in other circuits.

          There was also a circuit split regarding the application of a particular Sentencing Guideline that sat around for a couple of years until the Sentencing Commission resolved it. The SC doesn’t resolve every split, even when asked to.

          Which is to say, differences in how federal law is interpreted exist now. There might well be more of them if the court remains one member short, but circuit splits per se are not unheard of and don’t really cause a lot of practical problems other than making lawyers who practice in multiple circuits do more research.

          A circuit split can be a big deal, of course, depending on the issue, but in themselves they are not necessarily a cause for concern.

      • Joseph Slater

        Also, when the Supreme Court decides to grant cert in a case based on a circuit split, one of the criteria judges (or their clerks) tend to use is the extent to which it might be problematic in a given area of law to have different rules in different jurisdictions. So yeah, different states have different approaches in various areas, but there’s a difference between whether two different states have some different rules in torts, contracts, workers comp, etc. on one hand, and whether Citizens United is the rule in part of the country but not others.

        • That’s a particularly bad example because if it were the case, I’d just go to the state where it was not the rule and set up my superpac there. It wouldn’t make any difference at all.

      • You’ll have to explain why you think so. As I say, the law already differs by geography. I really don’t get why this is substantively different.

        • Joseph Slater

          To take the example I gave, you don’t see why it would be some level of not-good to have no limits on almost any kind of campaign contributions to federal campaigns in some states, and have significant limits on campaign contributions to federal campaigns in other states?

          • Denverite

            As I said above, I certainly can see the argument that having no limits on federal campaigns would be a disaster from a policy perspective. But I don’t see why having no limits in some states and limits in other states would itself be a disaster (aside, again, from having no limits in the relevant states itself being a bad thing).

            • Joseph Slater

              sneezehonestly (if that’s his/her real name) beat me to more-or-less what I would have said. What if Citizens United was the law in states that had very low union density, but states with high union density still limited campaign contributions?

              I’m not saying that most cases would create “and then democracy couldn’t function” problems, but there are a number of federal laws that at least assume, and in some cases depend on, more-or-less even/similar application throughout the states.

              • That would be completely moot. As I say, I’d just set up my superpac wherever it happened to be legal. It’s like incorporating in Delaware.

                • Denverite

                  This. Companies that wanted to spend unlimited money would just “move” to the jurisdictions that permitted that.

                • Joseph Slater

                  Not sure unions can move so easily. And what about contributions from individuals not made through PACs?

                  But if you don’t like that one, what about ERISA preemption rules? Individual employees can’t claim to be part of different jurisdictions for the purpose of their employment.

                  What about environmental regulation laws that track pollution through various states?

        • sneezehonestly

          Well, to take Citizens United as an example, if the Supreme Court had split 4-4, it may have been legal for unions and corporations in one state to spend unlimited amounts of money on national political campaigns, while unions and corporations in the adjacent state would be severely restricted in their spending in the same national election. For state elections, this wouldn’t be such a big deal, but it would obviously be a big deal in national elections if a corporation in California could spend millions supporting one candidate, such as Trump, while a corporation in New York would be prohibited from spending a cent to support Clinton.

        • Crusty

          You are completely ignorant and have no idea what you are talking about. Federal statutes passed by congress are supposed to apply federally. That state law determines the elements of a breach of contract and that it may be different in Montana than in Florida is irrelevant. The Constitution, by design, gives some powers to states (variation ok, duh) and some to Congress (variation not ok).

          • Denverite

            I’m maybe a little less ignorant on the subject than you think.

            You are missing the point. A world in which the search-and-seizure provision of the Michigan state constitution (to use the Michigan v. Long example) is different than the Fourth Amendment is different from the search-and-seizure provision of the Ohio constitution is functionally identical to one in which the Fourth Amendment is just interpreted and applied differently across the circuits. Erik said that the latter scenario would be a disaster. Since the current world isn’t, he has the burden to explain why.

            Just saying “variation is bad in this context and good in that context” isn’t responsive in the slightest. Why?

            • sneezehonestly

              Michigan v. Long is a particularly bad example because that case involved an appeal to the U.S. Supreme Court from the Michigan Supreme Court. The federal circuit court wasn’t even involved, so there was no possibility of a circuit split. The really problematic cases would involve individuals trying to vindicate their rights versus state officials in the federal district courts and the resulting appeals — these are the cases where the Supreme Court has traditionally been sensitive to the existence of circuit splits and has resolved them when they arose.

            • Crusty

              First off, I meant to say that it is mostly Cervantes, not you, who is ignorant. Second, Michigan and Ohio are free to make different laws regarding search and seizure, so long as they don’t infringe upon rights granted by the federal Constitution. That is how it is intended. But when Congress passes a federal statute, it is not intended that it be interpreted differently in different geographic regions. Maybe I didn’t read Erik’s OP clearly enough, but I would agree, that this is mostly just a problem for circuit splits on cases of federal statutory interpretation.

              As for functionally identical, there’s one key difference- as I pointed out, states can make their own state laws, but states (or circuits really) cannot make federal laws different in their territory.

              • Denverite

                As for functionally identical, there’s one key difference- as I pointed out, states can make their own state laws, but states (or circuits really) cannot make federal laws different in their territory.

                State courts certainly can interpret and apply federal laws differently than courts in other states. Indeed, I’m not even sure I by the whole “federal laws were intended to be interpreted and applied uniformly across the various states” point. Under the Article III compromise, there don’t even have to be any federal courts (other than the Supreme Court). Hell, there wasn’t even FQJ until the late nineteenth century. I think it would have been blindingly obvious to the framers that this would have resulted in a world in which interpretations of federal laws could differ quite substantially, and there would be no way for the Supreme Court to keep up.

                But that’s all really kind of an aside. I still think it’s a valid question as to why a world in which controversial areas of law vary by circuit would be such a disaster.

      • Yankee

        Well, if we had a stable nation. That took good care of its people. This is a pecuiliar route to localism, but here we are. Don’t look at me, I’m not driving.

      • msobel

        OTOH, it could provide a much desired chance to refight the War of Northern Aggression.

    • BigHank53

      More to the point, what happens when your life insurance company moves to Jesus-stan, where they don’t have to pay out on your claim because the “the wages of sin is death”?

      • Denverite

        Well, presumably the policy they sold you in your home state has a COL provision saying that your state law applies (or else it wouldn’t have been approved by your insurance regulators), and you can sue there as well.

      • Crusty

        If your life insurance company sold you life insurance in state A and then picks up and moves to Jesus-stan and says nahnahnanahnah, we don’t have to pay you anymore, you sue them either in state court in state A or in federal court in state A where the federal court will apply state A law.

    • Crusty

      Ugh, the ignorance about federalism, the federal courts, state courts, what the supreme court does, what congress does and what state legislatures do is staggering. But I guess that’s ok. Not everybody has to know everything and it is perfectly ok to not be a lawyer. In fact, it may be a plus. But to say something like laws are different in different state because legislatures made them different is just a staggeringly stupid statement, in context.

      Here is a quick primer-

      The United States Congress passes federal laws that are to apply nationally and uniformly throughout the country. This power is generally limited by the commerce clause of the Constitution, i.e., most federal laws must bear some relation to interstate commerce. Congress has a few other specifically enumerated powers.

      States can have their own legislatures, constitutions, etc. States cannot circumscribe the rights granted to their citizens under the federal constitution.

      State courts interpret and apply state law.

      Federal courts interpret and apply federal laws, or, when they sit in diversity jurisdiction, i.e., hear a case between citizens of different states, they apply state law.

      If a case involves a federal constitutional right, it can eventually get to the U.S. Sup. Ct. If a case involves only a state right, it will be determined by the highest court of that state.

      There are different federal circuits throughout the country that have different Courts of Appeals- the federal appeals courts just below the Supreme Court. These courts may be called upon to interpret federal law (i.e., the law that passed by Congress that is supposed to be uniform) and sometimes, different circuits will arrive at different results. For example, sometimes one circuit might find that a particular statute provides a private right of action, and another circuit might find the opposite. This is called a circuit split. The Supreme Court resolves those circuit splits.

      • Denverite

        Nonresponsive.

        The point — and I think it was a valid one — is that we live in a world in which different states have different laws. Some are similar. Some are not. We also live in a world in which circuit splits go unresolved, sometimes for decades. Our country has not imploded in the face of that variability between states and jurisdictions.

        A future world in which indefinite 4-4 tie votes create a scenario in which federal law is applied differently in different parts of the country (based on circuit) is functionally identical to our current one. Someone asserting that it would be a disaster has the burden of explaining why.

        • Crusty

          Completely responsive to all the idiotic posts by Cervantes and others who seem to have no understanding of federalism. As for Erik’s burden, I think it is quite obvious that a situation can arise where a federal statute is given an expansive reading in circuit, granting benefits defacto to the citizens of that circuit, while another circuit circumscribes the benefits of that statute.

          • Denverite

            As for Erik’s burden, I think it is quite obvious that a situation can arise where a federal statute is given an expansive reading in circuit, granting benefits defacto to the citizens of that circuit, while another circuit circumscribes the benefits of that statute.

            That’s certainly bad for the citizens in the narrow reading state if you are a proponent of the right in question (and vice versa if not), but why is the variability bad? Put slightly differently, if you are a proponent of the expansive right, is it any better if the entire country is subjected to the narrow reading? If your answer is “no, of course not,” then your problem is with the interpretation on the merits, not the hypothetical variability of it.

            • Bill Murray

              seen as a not lawyer, I only really hear you saying, Jim Crow and Slavery weren’t bad and a disaster

              • Denverite

                Try it this way.

                The problem with Jim Crow and slavery wasn’t that certain states were allowed to have different laws and legal regimes than other states. The problem with Him Crow and slavery is that those were monstrous laws.

                Or this way:

                Erik thinks having 4-4 ties result in situations (for example) where abortions are much harder to get in the 5th Circuit is a long term disaster. OK, game it out. Trump wins and appoints Judith Rogers Brown to the Court. No more 4-4 ties! Now it’s super hard to get abortions in any state that enacts that sort of TRAP law. Does Erik think that world — the law is uniform across circuits now! — is a better one than under the 4-4 tie? I have an inkling not. So his problem isn’t with a world in which the law is different in the different circuits. His problem is with a shitty law.

                • jim, some guy in iowa

                  for what it’s worth as another non lawyer I think I get where you’re going- just as being a federal law doesn’t make a law good neither does being a state law make a law bad. And by the time you take into account the various districts, even federal law won’t necessarily be interpreted the same from one part of the country to the next

          • Katya

            But that happens now. The SC, in its discretion, chooses not to resolve splits even where the split results in different rights and benefits under the law for people in different circuits. Sometimes two circuits disagree and the Court will wait for years for other circuits to weigh in and develop the split. In the meantime, the people in those two circuits are living under different interpretations of employment law, or anti-discrimination law, or whatever. Indeed, the reason we have a rule for what happens when the decision is a tie is that sometimes, there are ties (a judge is recused from a case, for example).

            Is it an ideal situation? No, of course not. But it’s a situation that we’ve been living under for some time now, without disaster.

        • sharculese

          Bu ‘that’s the way it’s always been done’ is equally non-responsive to the question of whether the way things are done is any good.

          • Denverite

            “Any good” is different than “not a disaster.”

        • Anon21

          I think the looming disaster has to do with the nature of certain federal laws. One common reason why there is a constitutional provision or federal statute governing an issue is that it presents a particular need for uniformity across the entire country. It is impractical, for example, to have human genes be patentable in New York, but not in New Jersey; a pharmaceutical company can’t correctly assess its IP options (trade secret vs. patent) unless it knows whether it has exclusive rights to a new genetic discovery. It is impractical for a conversation between competitors in different states to constitute an antitrust violation as to one, but not the other. It is impractical for a tax on out-of-state goods imposed by California to be struck down as a violation of the dormant Commerce Clause, while an identical tax levied by Colorado is upheld. (Because it encourages inter-state trade wars, the exact outcome dormant Commerce Clause jurisprudence is meant to avoid.)

          You are correct that the Supreme Court sometimes chooses to let circuit splits develop. But the key there is that the Court has discretion to determine which splits present a substantial risk of nonuniformity where uniformity matters, and which can be allowed to percolate while the Court considers further. If the Court routinely starts dividing 4-4 about a broad range of issues, it will lose that discretion.

          There are many areas of law–far from the top tier–where it is more important to have a rule that everyone understands than that the rule be correct. The good news is that for many of these issues, either there is not much disagreement within the Court about what the correct rule is, or the issue is non-ideological enough that a compromise can be reached. But over an extended period of time, the number of issues on which uniformity is important but the Court can’t impose it will tend to increase. I have no idea if the consequences will make themselves felt in one year or five, but I don’t think it’s a particularly good experiment to run with important issues in our social and economic life.

          • Anon21

            The patent example is actually wrong, because the Federal Circuit isn’t going to split with itself. But the broader point stands; if Congress decides that consistency across state lines is important for a particular policy area, a split Supreme Court can undo that decision through inaction.

    • efgoldman

      If the constitutional regime also differs in some respects by geography, I don’t see why that’s substantively different.

      So you were OK with pre-Warren court, pre-CRA racial segregation in some states but not in others?

    • NeonTrotsky

      Arguably the messy patchwork of state laws, many of which are terrible (Balanced budget amendments, TRAP laws, voter ID laws, various laws that make it impossible to ever raise taxes, the various RFRA variants, and even the odd Blue Law that hasn’t been repealed or challenged in court yet…) are an unmitigated disaster.

      • Denverite

        *bangs head into the table*

        But all of that stuff is bad because it’s all bad on the merits. The patchwork has nothing to do with it.

        • Bill Murray

          without a patchwork would it exist at all?

          • Denverite

            Some would some wouldn’t. Where it would, the bad laws would be applied nationwide. There are such things as bad and stupid federal laws.

          • Scott Lemieux

            without a patchwork would it exist at all?

            The Supreme Court established a uniform national interpretation of the 14th Amendment during this period, and that interpretation was that segregation was constitutional. Bringing up Jim Crow in this context is completely non-responsive.

    • njorl

      People know what state they live in. They don’t know what circuit they live in. They can’t vote to throw out their circuit representative in their circuit legislature.

  • MDrew

    What’s interesting to think about is how the Court would respond to there being little sign of a ninth member in the offing after a year or two or more.

    Would it start to seek to form coalitions in politically salient cases more (or differently) than it would have with a 9-member Court so as to produce more majorities because of concern about the effects, practical or in terms of perceptions of the Court, of many 4-4 splits? Or would the existing factions just dig in and prepare to accept even divisions over and over again?

    • Anon21

      I am also very interested in this, although I hope the vacancy doesn’t drag on long enough for this new dynamic to reach its full potential.

  • addicted44

    4-4 isn’t good. But it’s better than 4-5 if the 5 is Scalia (as it was until his death) or if it’s a Republican appointed judge.

  • Bruce Vail

    Half staff, not half mast, my friend. I guess you weren’t a Cub Scout…

    • Bruce Vail

      The SCOTUS building staff is short of Cub Scout veterans too. You’re not supposed to fly Old Glory after dark.

      • so-in-so

        It appears there is a light shining on it. I think that makes it legit.

      • njorl

        No flying the flag after the twilight’s last gleaming?

  • DrDick

    Disaster is exactly what the GOP wants. They would rather burn down the whole thing if they cannot get their way.

    • Nobdy

      This is the bigger concern than the specifics of an undermanned court.

      The GOP is pushing further and further into total war mode. Will they recognize any limits by convention? How do you run a country in the long term when a large portion of the government has no vision of governance or desire to compromise?

      How do they walk it back from this total war mentality?

      It’s scary at a fundamental level and I think we are all undervaluing how lucky we have been that Obama has kept things running pretty much as normal for the last 6 years.

      I think things are going to start to really break down, maybe sooner than later, and that is scary.

  • rdennist

    What I don’t get is why anyone buys the idea that after the election, they’d expect Republicans to allow the process forward. Why? Why wouldn’t they merely claim that the election did not give the Dems a fillibuster-proof majority in the Senate, ergo, THE PEOPLE HAVE SPOKEN, no nominations under Hillary, etc. etc. They’re already seen as obstructionist, what more damage could they do to their image? It’s not like the health of the country is a concern, look to the last administration as evidence.

    • kped

      I have the same feeling. Who knows what will happen, but there is really nothing stopping them from completely gumming up the process, or allowing hearings and then voting not to confirm every nominee.

      I wouldn’t be shocked if their leadership is hoping to lose the Senate (assuming a Dem wins the Presidency) to avoid having to go down that road to please the base.

    • Murc

      What I don’t get is why anyone buys the idea that after the election, they’d expect Republicans to allow the process forward.

      Do people think that’s what’s going to happen?

      ‘Cause I don’t. I think what happens if the Democrats retake the Senate is the Republicans do exactly what you say they do, and then the Democrats nuke the filibuster for SC nominees.

      I yield to nobody in my disdain for the fecklessness of the Democratic Party, but just about every Democratic Senator is, in fact, actually interested in governing. It has taken them a long time to realize the Republicans will not allow that, but I think they’ve finally gotten the message, and if the Republicans say “no nominations under Hitlery!” they’ll simply shrug and kill the filibuster.

    • djw

      If the Democrats fail to capture the Senate, sure. But if they do, and the Republicans took this position, I think we’d see the end of the filibuster on judicial nominees pretty quickly. (That’s one of the reasons I doubt they’d go full-bore obstructionist.)

      • NonyNony

        That’s one of the reasons I doubt they’d go full-bore obstructionist.

        I disagree. I don’t think that they can thread the needle that would be required to compromise enough to keep the filibuster and yet not be labelled a bunch of RINO sell-outs who are going to get primaried at the next opportunity.

        While it might be better for the GOP collectively if there were a handful of Senators who allowed a vote in exchange for keeping the filibuster, there will not be enough individual Senators who have the incentive to take that bullet for the team. And so it will get nuked, the GOP will have another example of “Democratic overreach” that they can fundraise on and while they will lose one veto point they will be somewhat consoled by the number of other veto points they still have.

  • twbb

    He missed what I think is the most important reason to not care TOO much about it; the DC Circuit court has outsized importance because of jurisdictional provisions in federal statutes as well as the APA generally. The most important decisions in my mind are those involving electric utility GHG regulations (and to a lesser extent mercury emissions) and I am fine with the current D.C. judges empanelled for those decisions.

  • Joe_JP

    Well operated government institutions, including an ability to settle hard cases, to me is a good thing. This doesn’t mean the alternative is something we can’t bear, but that is something of a low bar. At least, I thought good government is what “our” side said we were all about. Suddenly, when it ideologically suits (and various comments suggest perhaps not so much), it isn’t that important?

  • The kicker, of course, is that the Republicans will use this as yet another example of how government doesn’t work.

  • Troll comment deleted

    Troll comment deleted

  • Crusty

    I think we’ll sooner see a seven justice court than a nine justice court.

    • bender

      I’m inclined to agree.

      Presumably if nominations remain stymied, the eight currently on the bench will hang on to their seats as long as they can function, and possibly longer. The latter might be a more serious problem than being shorthanded.

      Also, a prediction: If Clinton wins and the Democrats control the Senate, Obama will follow in Taft’s footsteps. Relatively young, relatively liberal, not white, allegedly an expert on the Constitution, and fills the currently vacant Protestant seat. I think he’d love the job, plus he gets to get under Thomas’s skin every working day.

      • Redwood Rhiadra

        Obama has explicitly said he does NOT want to be on the Supreme Court.

  • sneezehonestly

    For those upthread who still don’t think this could be a problem, consider this:

    Let’s say a candidate for national political office, such as Donald Trump, didn’t like what the Los Angeles Times said about him in an editorial and that Trump wanted to sue the Times for libel. The Times is distributed nationally, so any alleged libel would have been published in every state. So, Trump, a citizen of New York, decides to sue the Times, a California corporation, in federal district court in the Southern District of Texas, citing Texas’s state libel laws and invoking federal diversity jurisdiction. The district court eventually finds that the Times is liable and that the First Amendment doesn’t protect the Times, and this decision is affirmed by the Fifth Circuit.

    Let’s say, further, that every other federal circuit has reached a contrary conclusion regarding the applicability of the First Amendment to state-law libel claims, and that Trump’s claim would have been barred in every circuit but the Fifth. The Times appeals to the Supreme Court, but there is a 4-4 vote by the justices, and the Fifth Circuit’s decision is affirmed by an equally divided Court, leaving the circuit split in place.

    The practical effect here would be to allow a single federal circuit to preempt all of the other federal circuits and set the rules for the entire country. Of course the law would technically protect the Times in all of the other circuits, but there would be no way to publish the statements critical of Trump in a national newspaper if the paper could always be held liable in the Fifth Circuit, and the paper (and all other papers) would have to adjust their policies accordingly and restrict their criticism of Trump.

    • Denverite

      You mean it might be possible to take advantage of friendlier law in certain jurisdictions, provided that the jurisdiction would have jurisdiction over the dispute and its COL analysis would pick the friendlier law in question? Oh heavens how would our system go on in that world.

      • sneezehonestly

        As a general rule, you’re right: it happens all the time and the world doesn’t come crashing down. But there are some cases and some issues that are of national importance, and not having the ability to resolve circuit splits regarding those issues could be very bad. Allowing the most anti-First-Amendment circuit to effectively set the rules for the entire country is one example where this could happen. There aren’t good examples of this actually happening in the past because we’ve generally had a Supreme Court that would resolve these issues, whether favorably or unfavorably to anyone’s particular viewpoint.

        • Denverite

          Allowing the most anti-First-Amendment circuit to effectively set the rules for the entire country is one example where this could happen.

          In a tortured hypothetical in which there is jurisdiction everywhere, the NYT is unable to win the race to the courthouse and file for a dec action in the SDNY, and there aren’t five justices to agree on a First Amendment interpretation, etc.

          I just don’t see it as a problem in the real world.

        • twbb

          But the Supreme Court has already set libel standards. Just because the SD of Texas does a bad job of interpreting them doesn’t mean the standards don’t exist; I mean, judges get things wrong all the time.

  • Gwen

    I went home for Easter and one of my relatives kept going on about how she can’t understand why “the liberals can’t just have their part of the country with high taxes and {insert list of things conservatives dislike, wasn’t paying attention}” and “conservatives can’t have their part of the country where I can pay low taxes and support the charities I want to support {i.e. not those Welfare Bum Democrats}.”

    Aside from the fact that we already have, federalism (same relative blamed Obama for the Texas DPS underfunding it’s driver’s license office — go figure!)… letting different parts of the country have fundamentally different moral codes is, uh, not how a nation-state works in the 21st Century.

    Anyway, even once you get a 9th justice, there’s going to be the problem again that the Supreme Court hears way too few cases to really ensure that the law is uniformly applied across the country. The SCOTUS handles way fewer cases today each year than it did 100 years ago.

    Maybe what we need is a sort of JV squad for the Supreme Court that hears the relatively less controversial stuff (you know, things like business law that the media deems too BOOOOOORING to cover). I guess you already have that in the Federal Circuit. Maybe a new Court of Appeals for the Obscure-Shit-Only-Lawyers-Care-About Circuit?

    Or maybe the SCOTUS should do a little bit less show-boating and crank through about twice as many cases in a term, which is undoubtedly what Jesus and George Washington intended.

    • Denverite

      I’ve always thought that they should have some sort of “magistrate” Supreme Court that the Court can refer cases to for a recommended decision. It wouldn’t have to; it could still hear cases for itself. It wouldn’t be required to adopt the “magistrate SC” recommendation (though it probably would most of the time). But it would give the Court options besides (simplifying) grant cert or deny it. It could grant cert and hear the case, grant cert and refer it, or deny it.

      And the real two perks are that it wouldn’t have to be an Article III court, so you wouldn’t have to go through the nomination and confirmation process, and you could set it up with more than nine “magistrate Justices” and have panels smaller than “all of them,” so it could here a ton more cases.

      • Gwen

        Good idea!

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