Balkinization  

Friday, October 08, 2010

4-4 Is Fine

Jason Mazzone

Justice Elena Kagan has recused herself from 25 of the 51 cases the Supreme Court has thus far agreed to hear this term. Most observers think she has made the right decisions in light of the recusal rules. But there has also been a good deal of commentary about the risk of 4-4 outcomes in those cases.

Senator Patrick Leahy has proposed legislation that would authorize the Justices to appoint, by majority vote, a retired Justice to fill the seat of a recused Justice. In explaining his proposal, Leahy said that it is designed to prevent the Supreme Court from being “rendered ineffective.” He reasoned: “Given the Court’s recent rash of 5-4 rulings, the absence of one Justice could result in a 4-4 decision. In that scenario, the Supreme Court cannot serve its function and the lower court decision stands.”

Leahy’s proposal strikes me as a solution in search of a problem.

The Supreme Court can function perfectly well with eight Justices on a case. The only effect of a 4-4 outcome is that the lower court decision stands. That can’t be a problem because it’s the result that occurs in the hundreds of cases the Court declines to hear each term. And it’s the result in the millions of cases that the Court is not even asked to review.

Sure, a 4-4 decision wastes some resources: lawyers brief and argue the case, the Justices review the filings and participate in the argument, columnists speculate about the outcome, and spectators line up in the cold. But as far as government waste goes, the resources a 4-4 case squanders are not terribly high.

Further, not many cases are decided 5-4 and so not many can end up 4-4. Last term, there were fourteen 5-4 decisions. In some of those cases, the majority opinion was sufficiently weak (Christian Legal Society v. Martinez, for instance) or unhelpful in providing guidance to lower courts (McDonald v. Chicago) that it may have been better for the Court not to have decided the case at all. Other 5-4 decisions last term, including Sears v. Upton (correcting a lower court’s analysis of an ineffective assistance of counsel claim), had little or no impact on the judicial system as a whole.

Senator Leahy seems to think that the function of the Supreme Court is to hear appeals from lower courts and settle definitively legal disputes. But the effectiveness of our legal system simply doesn’t depend upon Supreme Court review. With control over its docket, the Court decides issues not cases. No litigant can expect a hearing at the Supreme Court. No lower court has much reason to fear being corrected by the Supreme Court. And as for issues, they reappear. A 4-4 split in one case doesn’t foreclose resolving the same issue with a full Court in a future case.

Let the retired Justices enjoy retirement. 4-4 is just fine.

Comments:

The idea apparently came from Stevens (or at least endorsed by him) and O'Connor takes on lots of lower court cases / probably thinks she retired too soon. That leaves Souter, but the amount of time it takes to fill in 1/3 of the time when there is a 4-4 case is not very much and even he has taken on a few lower court cases. So it's not really a problem for the retired justices.

We survived this long, so I don't think it's a big problem, but who knows, maybe there will be some time when it's useful. For instance, some major case where there isn't even a quorum. Or, an original jurisdiction case.

I don't think the justices HAVE to take on a retired justice, it would be up to them. Not a big deal but why not?
 

Why should Kagan recuse herself? I ask this non-rhetorically. The fact that she worked on the government's side of the case doesn't necessarily mean that she agrees with the government's side. Her having worked on the case makes her intimately familiar with both the government's side and the opposing side.
 

While it's certainly conceivable that the AG doesn't agree with a case she argued, it's most assuredly not the way to bet, since she can reassign that duty in cases where she finds it odious. And, do I really need to point out that the reason the administration nominated her is exactly that they DO think she agrees with them on most issues? She's not there to rule AGAINST them, that's for sure.

It's equally true that a person might be indifferent to the fact that somebody is their brother, and just hiring them on merit, not nepotism. But we still frown on hiring your relatives for anything but the family business. Because the theoretical possibility that something won't be abused isn't enough.

IOW, don't be obtuse, Henry. Of course she should have recused herself.
 

4-4 should be alright for one term. There are issues with clerks for surrogacy guest appearances by former justices. Besides, there is already one justice who only calls case opinions as balls and strikes, so we know 4-4 will be a dispassionate outcome sometimes; and there is one justice who likes to say things like 'get over it', another ump's sort of retort. That gives us two impermeable votes out of 4. I agree with prof Mazzone on the possible superfluousness of the draft rule, but remain willing to support the conscientious oversight efforts of senator Leahy, who cares a lot about the institution and its viability. I disagree that some 5-4 outcomes have been inconsequential. As for the recusals, I find them refreshing as a tenure starting point. As I understand the criteria for withdrawing, appearances are important.
 

The 4-4 situation is not limited to when a justice recuses himself or herself. There is also the possibility of an extended vacancy on the court.
It hasn't happened in a while, but imagine what would happen if say, Ginsburg left the court within a year of the next presidential election, or even worse, Kennedy. It's not hard to see the GOP blocking a confirmation until January 2013 in the hope that they could get a Luttig on the court instead of a Garland. (I'm sure the same thing would have happened from the other side of the aisle if Rehnquist had died in late 2007 or 2008).

A court with 8 justices poses the problem of a circuit split on an important issue that cannot be resolved for some length of time. That would pose issues of fairness and (where possible) invite forum shopping.

What is the downside of allowing a replacement justice from the ranks of the retired if you have a retired justice available and they are willing to do it?
 

"That can’t be a problem because it’s the result that occurs in the hundreds of cases the Court declines to hear each term. And it’s the result in the millions of cases that the Court is not even asked to review.

Isn't it a problem?

The court is structured to an odd number to produce a majority result-- presumably for a reason. The case that has made it to the court has been chosen to be heard by that court-- presumably for a reason.

But an appeal rejected by a hung court, is rejected not because its been rejected by a majority which is as it meant to function, but because there's no majority.

For me, if I were a litigant, faced with an adverse decision (or, for that matter, for anyone else who wanted to see the law as the appellant wanted to see it) because of the accident of a recusal or a head cold that would be how can I say it?

Ah yes. "A problem."

And Senator Leahy's bill would be, in my mind, a solution in search of it.
 

Your premise is of course correct in many ways. But I'd like to expand on the waste a bit.

Given that SCOTUS hears so very few cases, the interest in having those cases decisively decided is great. A 4-4 decision is an unresolved issue, and it's in the interest of the people to have decisiveness and finality. The law abhors waste. And that is a foolish, unnecessary waste.
 

Sometimes you need a backup plan:

http://www.texasalmanac.com/history/highlights/supreme/

Three women comprised a special Texas Supreme Court for five months in 1925. It was the first all-woman high court in the United States.

These were not merely honorary appointments. Governor Pat Neff appointed the three women attorneys as a special state supreme court to hear the appeal of a case involving the Woodmen of the World (WOW), a fraternal association.
 

I really need to point out that the reason the administration nominated her is exactly that they DO think she agrees with them on most issues?. I agree with prof Mazzone on the possible superfluousness of student aid the draft rule, but remain willing to support the conscientious oversight efforts of senator Leahy, who cares a lot about the institution and its viability. I disagree that some 5-4 outcomes have been inconsequential.
 

An un-cosponsored preliminary draft of the Leahy amendment to 13 USC 28 is available there.

By way of reflection, although there was considerable furor surrounding how the 9 justices might split their vote in the Hamdan matter, in the last it was not a 5-4 case. Yet, recall the lobbying for one justice to recuse in that case after having made public statements favoring one side; the linked document is a letter to the clerk of the court naming the justice the writers thought should recuse after that incident.

Also, in a Leahy Scotus recusal revised world, I could imagine Federalist Society's developing a new strategy for packing the pool of retirees with a preponderance of conservatives. This could be achieved simply by pressuring conservative presidents to encourage conservative justices to retire early so the conservative president could nominate conservative replacements; as well as by retrenching resistance to Scotus tenure term limits. Each conservative president, thereby, could increase the number of conservatives in the retiree pool, and increase the likelihood that any recusal, left or right, would invoke a substitution rule that would augment the likelihood of conservative outcomes.
 

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