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Friday, September 30, 2016

How Does an 8-Member Court Decide Bush v. Gore?

Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.

As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)

As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.

It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.

This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.

There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”

How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.

Posted by Lisa Manheim on September 30, 2016 at 11:13 PM in Current Affairs, Judicial Process, Law and Politics | Permalink

Comments

One professor at least thinks eight is enough:

http://www.dorfonlaw.org/2016/09/comfort-zone-constitutionalism.html

I don't really agree with him, but it does has a few things going for it. Basic problem is the MEANS being used to get us there. Anyway, appreciate your analysis and do think the third approach is best.

Posted by: Joe | Oct 1, 2016 7:25:21 AM

Lisa, interesting post. I wonder, though, is not being able to decide another Bush v. Gore a bug or a feature? Whether paralysis is good or bad depends on whether the action blocked would have made things better or worse.

Posted by: Orin Kerr | Oct 2, 2016 12:10:29 AM

Thanks for the link, Joe. I wonder if Eric predicts that the Court he proposes (made eight-member by design, rather than through political gridlock) would evolve to produce better opinions than those currently being issued. Anything that encourages the Court to work toward consensus has its appeal -- but some of the recent decisions really are difficult to parse, and I am concerned about their effects on the doctrine.

Orin, if the goal is to minimize the Supreme Court's involvement in controversial cases, then I agree that paralysis helps to achieve it. (However, if the goal is to minimize the involvement of the federal courts, then it's somewhat counterproductive to hamstring the Supreme Court, which can curb interventions by others.) In any event, you're right to suggest that we might cheer the effect of paralysis in individual cases if we prefer the status quo and are concerned that a fully functional Supreme Court would introduce error. But particularly when looking at all cases across all subject matters (or even just across the wide swath of disputes that can arise in the field of election law), aren't we sometimes rooting for the petitioners?

Posted by: Lisa Manheim | Oct 2, 2016 1:47:02 AM

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