WASHINGTON — (CNN) Sitting next to Justice Elena Kagan in an event earlier this month, retired Justice John Paul Stevens took the unusual step of criticizing a decision the Supreme Court had handed down earlier in the day.
It wasn’t a high-profile issue like abortion or affirmative action — this case dealt with a former police officer charged with conspiracy.
But Stevens, to the amusement of an audience of judges at the 7th Circuit Judicial conference in Chicago, called the opinion by Justice Samuel Alito a “monstrosity” and said he thought there had been a “perfect solution” to deal with it.
He said the justices should have simply announced they were evenly divided.
“When they could have been 4-4 and gotten rid of a messy case, they somehow or other struggled to keep the case alive,” Stevens told the audience at the event that was covered by C-SPAN. Kagan burst into laughter.
“I’m glad I didn’t write that one,” she said, dodging his comments.
Sitting justices aren’t publicly addressing the remaining cases with the same candor as Stevens.
But how the justices might decide some of the close cases with a divided eight-member court is a theme in a term that has been turned upside down by the sudden death of Justice Antonin Scalia.
Senate Republicans are refusing to take up the nomination of Judge Merrick Garland to replace Scalia, meaning the court will be evenly divided among the four liberal and conservative-leaning justices for the foreseeable future.
Outstanding cases on the court’s docket include a challenge to a Texas abortion law that critics say is one of the most strict nationwide as well as a challenge to the president’s controversial executive actions on immigration. The court will also decide an affirmative action case but only seven justices will vote on that. Scalia died after oral arguments and Kagan is recused from the case presumably because she dealt with it in her previous job as Solicitor General.
Behind closed doors, the justices are dealing with a handful cases and among the options in a very small number of them is to either divide 4-4 (which automatically upholds the lower court opinion) or to find an area of consensus to rule narrowly and duck a broad opinion.
So far the term has shown examples of each. For instance, in an important case concerning public sector unions, the justices simply issued a one-sentence order noting they were evenly divided. It was an unexpected win for liberals when the lower court ruling in their favor was upheld. But it also meant the Supreme Court had decided nothing and no precedent was set.
Justice Ruth Bader Ginsburg told an audience last week that she felt that only having eight justices was harmful to the court. She pointed to the public unions case — Friedrichs v. California Teachers — and said the case was one of the “most closely watched” cases of the term but had ended with no opinion from the justices. “An equal division is essentially the same as a denial of review” she said and noted that the precedent underlying the case had survived another day “at least until the court numbers nine.”
Although it looked like the justices were headed for a 4-4 split in another case concerning the Afffordable Care Act’s contraceptive mandate, the justices did something different. The case was a challenge brought by religious non-profit groups who objected to providing contraceptives under the law. The justices ducked a broad opinion and sent the case back down to the lower court instructing the parties to look for a compromise.
In her remarks, Ginsburg noted that the headline case had been resolved “without an opinion on the merits.”
It’s the new reality in an eight-member court that is often unanimous but judged largely by a handful of contentious cases each term.
Although the justices are avoiding controversial comments in public appearances, they have referenced the debate.
Chief Justice John Roberts was careful in his comments last week before the 4th Circuit Judicial Conference when he said: “I try to achieve as much consensus as I can, again that’s not something I can do on my own,” he said in the event covered by C-SPAN.
Justice Steven Breyer downplayed the impact of an eight-member court.
“We’re unanimous 50% of the time,” he said at the annual Burton Awards ceremony held at the Library of Congress. “And 20% of the time, we’re 5-4 and about half of those are sort of random — you know not what the press would call the usual suspects.”
Law professor Barry P. McDonald, a professor at Pepperdine School of Law, opined in The New York Times recently that an eight-member court, while not representing a “permanent fix,” should not “overly trouble us either.”
“An evenly divided court may prompt the justices to reach practical compromises that assist real-life litigants, instead of making bold, sweeping and highly debatable proclamations about the meaning of the Constitution,” he wrote.
But Elizabeth Wydra, of the progressive Constitutional Accountability Center, is troubled by an eight-member court and has been urging the Senate to confirm Garland. While she agrees there are times when the court may prefer to issue a narrow consensus ruling, she says, “That doesn’t mean that the court should punt on important legal questions simply because there is not a fully staffed court capable of setting national precedent and resolving profoundly important legal disputes.”
And although Breyer points to only a small number of cases that could be close, she said those cases are often the most important.
“It is hard to be sanguine about a potential 4-4 deadlock if you are a woman whose right to reproductive choice is at stake, or you are an immigrant whose ability to stay with your family is at risk,” she said, referencing two of the pending cases.
In his comments, Breyer addressed neither case, but left his audience dangling.
“We may divide 4-4 in four to five cases, we may not,” he said.
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