Evenly Split Supreme Court Finds Consensus in Modest Rulings

Sunday, May 22, 2016
(photo: Drew Angerer, Getty Images)


By Adam Liptak, New York Times


WASHINGTON — The Supreme Court has gone into hibernation, withdrawing from the central role it has played in American life throughout Chief Justice John G. Roberts Jr.'s decade on the court.


The court had leaned right until the death of Justice Antonin Scalia in February. According to the conventional wisdom, the court is now evenly divided and large numbers of 4-4 ties are inevitable. But the truth is more complicated. The court is not deadlocked so much as diminished.


The justices will continue to issue decisions in most cases, but many will be modest and ephemeral, like Monday’s opinion returning a major case on access to contraception to the lower courts for further consideration.


“We’re seeing an even greater push for broad consensus and minimalist rulings, and a majority of the court seems willing to go along with that approach,” said Jonathan H. Adler, a law professor at Case Western Reserve University.


Opinions vary about whether a Supreme Court that does little is good for the nation, but the trend is certainly a testament to Roberts’ leadership. He has long said he favors narrow decisions endorsed by large majorities, and it turns out that goal is easier to achieve on an eight-member court.


In public remarks in April, Justice Elena Kagan described a court that is now “especially concerned” about finding ways to achieve consensus. “All of us are working hard to reach agreement,” she said.


“I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” she added. “He’s conveyed that in both his words and his deeds.”


The resulting minimalism is good news, said Eric J. Segall, a law professor at Georgia State University.


“Yesterday’s contraception case shows why an equally divided court among liberals and conservatives has many benefits for our country, and also why the sky-is-falling claims by many court watchers about an eight-member court are overstated,” he said Tuesday.


In the contraception case, Zubik v. Burwell (pdf), No. 14-1418, the court’s unanimous unsigned opinion urged lower courts to find a compromise, one that Segall said “may lead to a better solution for both sides.” The opinion sought to bridge the gap between religious groups that wanted no part in providing contraception coverage to their female employees and the Obama administration, which wanted to make sure the coverage remained easily accessible.


“This type of consensus decision making,” Segall said, “is a welcome change from the normal political and sometimes partisan approach we normally see in important 5-4 opinions, where one side can impose its own agenda on the parties and the country.”


Republican senators have vowed not to confirm Obama’s Supreme Court nominee, Judge Merrick B. Garland, saying the choice of a replacement for Scalia should go to the next president. That would leave the court short-handed for many more months.


In the meantime, the eight-member Roberts court is in important ways dominated by the court’s four-member liberal wing, which can now block efforts to move the law to the right.


A prime example came in March, when the court deadlocked in a case that had threatened to cripple public-sector unions, Friedrichs v. California Teachers Association, No. 14-915. When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violated the First Amendment. Scalia’s questions were consistently hostile to the unions.


There are many other ways to assess the shift in the balance of power since Scalia’s death.


Four days before he died, the court blocked the Obama administration’s effort to combat global warming by regulating emissions from coal-fired power plants. The vote was 5-4, with the court’s conservatives in the majority.


Just three weeks later, in a significant victory for the Obama administration, Roberts refused to block a different regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants.


And last Thursday, a deadlocked court refused to vacate a stay of execution of an Alabama man, Vernon Madison, with the court’s four conservatives saying they would have let the execution proceed. Had Scalia lived, Madison would almost certainly have died.


The court has three major decisions left to decide before the justices take their summer break: on abortion, immigration and affirmative action.


In the first two, tie votes would leave in place conservative appeals court decisions but set no Supreme Court precedent, allowing the justices to return to the broader legal issues in later cases.


At the argument in March in the abortion case, Whole Woman’s Health v. Hellerstedt, No. 15-274, Justice Anthony M. Kennedy said that it could be useful to return the case to the lower courts to develop more evidence. That approach would yield another minimalist decision.


When the court agreed in January to hear the immigration case, United States v. Texas, No. 15-674, conservatives hoped for a major ruling on presidential power. They were particularly heartened when the court took the unusual step of asking the parties to address the question of whether Obama had violated his constitutional obligations to enforce the nation’s laws.


But when the case was argued before eight justices in April, a deadlock seemed likely and a sweeping decision on executive power was off the table.


There is one case in which the court could still take a step to the right, Fisher v. University of Texas at Austin, No. 14-981, a challenge to the university’s race-conscious admissions plan. Kagan has recused herself, based on her work on the case as U.S. solicitor general. That means Scalia’s death eliminated rather than created the possibility of a tie.


All of this term’s blockbusters were added to the court’s docket before Scalia died. Since then, the justices have agreed to hear just seven cases, and none of them concern issues of broad public interest. Several involve intellectual property and procedural issues unlikely to produce ideological splits.


The next term, which starts in October, is thus shaping up to be a thin and quiet one. Until the next justice arrives, the Supreme Court will remain on the sideline of American life.


“The court will be on the front pages less often,” said David A. Strauss, a law professor at the University of Chicago.


“The justices won’t have so much trouble with relatively technical cases, and some of those can be very important to the legal system,” he added. “But they will either stay away from the most controversial cases or do what they’ve been doing over the last few months — deciding those cases in a way that postpones, maybe indefinitely, the day of reckoning on the most divisive questions.”


To Learn More:

Most Americans Support Obama Nomination of Scalia Successor (by Megan Cassella, Reuters)

Supreme Court Justices Quietly Rewrite Opinions after they have been Published (by Noel Brinkerhoff and Steve Straehley, AllGov)


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