Geography and Law in the Evenly Divided Court

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.