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Monday, June 13, 2016

The Eight-Justice Court in the American Mind

The Supreme Court did not release any major decisions today, which raises the question of what the next few weeks will hold for the blockbuster cases still to be decided.  One of the issues that I am currently writing about is the normative and empirical dimensions of the Supreme Court's influence on American public opinion.  I have written about this already in an article with Donald Braman and an article on Sonia Sotomayor, and I blogged about it earlier this month.  In a draft article with the political scientist Brandon Bartels--which we will post later this summer--we argue that the American people do not particularly care if the Court invalidates laws enacted by Congress and signed by the President, and we consider whether that does and should shape how we think about judicial review.  

I wanted to take some of what I have written about already and apply it to how the next few weeks might play out in terms of what the Supreme Court does and how the public will respond to it.  Sometimes in their opinions the Justices will directly reference how the public responds to what the Court is deciding and how that shaped their decision.  For instance, the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey famously did so.  Because several of the Justices have spoken about the 8-Justice Court in their public appearances, we can reasonably infer that they are thinking about the public reaction to their next few decisions as well.  How will they respond to the eight-Justice Court, and how will the American people respond to their approach?

Roughly speaking, we might see two narratives in the weeks ahead, and we might predict two different types of reactions to those two narratives:

(1) The Zubik Approach: We might see the Justices decide cases the way that they decided Zubik v. Burwell earlier this term.  The Court could "express[] no view on the merits" of a case (the language from Zubik) or it could even express very narrow views on the merits.  In their public remarks, Chief Justice John Roberts and Associate Justice Stephen Breyer have indicated that approaches like Zubik will preserve the Court during this interim eight-justice period.  Staying away from controversial issues related to the Court is the way to ensure that the public does not "los[e] confidence in the judiciary" (Casey's language).  Better to issue decisions obviously trying to avoid a divided Court than actually to have a divided Court.  

If this is the approach the Court takes the next few weeks, the Garland nomination could fade even more from public discussion.  By doing nothing--and certainly doing nothing interesting--the Court would be removing itself from the public spotlight. The Zubik approach is essentially that "no news is good news" for the Supreme Court. As I have written elsewhere, the capacity to pop in and out of the news and political conflicts is crucial for the durability of a high court.  With a presidential race likely to occupy the public mind over the summer, the Court would comparatively disappear--and so would the Garland nomination.

(2) The Divided Court Approach: We might see the Justices not find a minimalist compromise, and instead divide 4:4.  This generates lots more media coverage than the Zubik approach, even if the Court just notes that it is tied 4:4 and adds nothing more.  As I mention in another post, there has been some discussion about whether the Justices will find some way to deviate from their usual practice and comment on the divided Court.  If they do that, the media coverage would be even greater still than just noting the 4:4 split without opinions.

The Divided Court approach would generate more headlines and generate more pressure on the Senate to act.  It would reinforce the Obama narrative that the Court cannot do its job right now, more so than the Zubik approach does.  Conflict is news, and more news generates more pressure to do something about the Court vacancy.  It would likely not matter in the end, but the Court would return to the headlines rather than fade from them even more. 

Posted by David Fontana on June 13, 2016 at 10:20 AM | Permalink


RQA, I am reporting what I have heard at a few events in the past few weeks from those who argue cases before the Supreme Court. I don't know enough about the particulars of the Supreme Court Rules to know how they would do so, but I just know that there was a sense from these lawyers they could find a way to do so. I don't know if it is better to put a case over for reargument or to express opinions now. I will just note on that then a Justice could reasonably worry how long they might be waiting if they relisted a case, so there are negatives of each approach.

Posted by: David Fontana | Jun 13, 2016 11:56:30 AM

Thanks for the response. I take it you are suggesting the Court might reconsider the practice of treating a tie as summary affirmance, but I don't follow how Justices could make that effective or why any of them would want to. Also, I don't know why we shouldn't expect the Court to put some cases over for reargument -- that might be a more decorous way of calling attention to the need for a ninth Justice. (Obviously, the 4-4 split in Friedrichs, which had been a high-profile case, didn't do much to affect public debate on the Garland nomination.)

Posted by: RQA | Jun 13, 2016 11:51:01 AM

RGA, thank you for your thoughts. See the post I just put up addressing some of these issues. There is some discussion they might do this differently, which prompts the exaggerated version of scenario (2). Even if they just announce the 4:4 split, though, that would generate more discussion than Zubik did.

Posted by: David Fontana | Jun 13, 2016 11:27:08 AM

I don't understand the second approach. When the vote is 4-4, the Court issues a standard one-sentence per curiam decision ("The judgment is affirmed by an equally divided Court"). Why would the Court depart from that practice now? (I can, however, imagine that something like the scenario you envision might arise when a current Justice is recused, creating the possibility of a broad decision by a seven-Justice court split 4-3.)

Posted by: RQA | Jun 13, 2016 11:08:01 AM

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