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The Perils of Our Split Supreme Court

Public-sector unions caught a break from the Court’s 4-4 opinion. But a divided Court is good news for nobody.

Pool/Getty Images

If Tuesday’s opinion in Friedrichs v. California Teachers Association is any indication, Supreme Court justices should have plenty of leisure time in Washington for the foreseeable future. Here is the sum total of the opinion: “The judgment is affirmed by an equally divided Court.”

This high-profile case, over whether public-sector employees have the First Amendment right to refuse to pay “fair-share” fees to a union they’ve declined to join—but that still collectively bargains on their behalf—was expected to deliver a crushing blow to labor. But that was before the death of Justice Antonin Scalia in February. His absence turned a likely 5-4 ruling against the teachers’ union into a 4-4 split. That means the judgment reverts back to the lower court, which upheld the right of the union to collect fees. The justices didn’t bother to make any arguments on either side, because they effectively don’t matter.

Unlike a majority Supreme Court ruling, a 4-4 split doesn’t make binding precedent for the entire nation; it just upholds the ruling of the circuit court of appeals where it was decided, in this case the 9th Circuit. A separate challenge from another circuit court could produce a different interpretation of the law, and if the Supreme Court remains deadlocked, the same issue could have different legal outcomes in different parts of the country.

This is already happening. A case about giving gender-discrimination protections to spouses of borrowers of bank loans produced a 4-4 tie last week. The 8th Circuit had ruled that the bank didn’t have to extend Equal Credit Opportunity Act protections to spouses, and the Supreme Court affirmed that ruling; but the 6th Circuit separately made a different one, saying that spouses are eligible. So if you take out a loan in Missouri, jurisdiction of the 8th Circuit, you can legally be treated differently than if you take one out in Michigan, home of the 6th.  

Of course, this is all fallout from Republicans’ refusal to even contemplate confirming Supreme Court nominee Merrick Garland—or any choice from President Obama. In controversial cases where the Court’s liberals and conservatives are divided, this effectively nullifies the nation’s top judicial arbiter, and creates regional Supreme courts throughout the country, suddenly empowered as the final word for their particular jurisdictions.

In the immediate term, this means that circuit court rulings, typically decided by three-judge panels chosen at random out of a roster of sitting judges, will predominate. Who gets to sit on those panels for particular cases is up to the luck of the draw—which is now, incredibly, a critical element to how the laws in America are interpreted, at least until the Supreme Court returns to full strength.

A three-judge appellate ruling isn’t necessarily the last word, even with a neutered Supreme Court. Litigants can always ask for a re-hearing of a circuit court case by an en banc panel of all the court’s judges. But appellate courts aren’t obligated to re-hear a case en banc; they can turn down the request. And the Federal Rules of Appellate Procedure actually says that en banc panels are “not favored and ordinarily will not be ordered,” unless there’s a contradiction in the court’s decisions or if the case “involves a question of exceptional importance.” So for the bulk of cases, Lady Luck will play a major role.

Theoretically, at least, this situation favors Democrats. Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority.

Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future. Whether you see that as a good thing depends on how you feel about current law in a particular area. It likely means continuing to allow corporations and wealthy individuals to make unlimited donations to super PACs in line with the Citizens United ruling. It also means maintaining a woman’s right to choose in line with Roe v. Wade.

However, in cases with unsettled law or unique addendums, the regional Supremes can make very consequential rulings. For instance, in Whole Woman’s Health v. Hellerstedt, the 5th Circuit ruled last year that Texas’s regulations for abortion providers—including requirements that abortion doctors have admitting privileges to hospitals and that facilities maintain the same standards as surgical centers—didn’t impose an “undue burden” to getting an abortion and were therefore legal. If the Supreme Court splits 4-4 in the case, which it heard earlier this month, that ruling would be upheld for Louisiana and Mississippi as well as Texas, limiting abortion access for millions of women.

On the other side, a split in Zubik v. Burwell, the latest case attempting to undermine sections of Obamacare, would uphold a 3rd Circuit ruling that the law can compel religious organizations to provide birth control free of charge through their employer-provided health care. However, an 8th Circuit ruling strikes that section of the law down—so a 4-4 Supreme Court split would allow the blockage of free birth control for employees of religious institutions to remain in place. Once again, the law would differ depending on where you live. 

Recognizing this potential, the Court issued an order yesterday in Zubik asking the religious groups in the case to supply examples of how their female employees could obtain free birth-control coverage without violating their consciences. In effect, the Supreme Court is trying to act as an arbitrator in hopes of avoiding the fallout from a 4-4 split.

The upshot here is that a divided Supreme Court with a vacancy is a disaster for the country. The nation’s implementation of the laws will slowly begin to bifurcate, with an increasing number of legal interpretations based to an uncomfortable degree on which judges get assigned a particular case. The law of averages dictates that this would benefit Democrats because of their appointees’ dominance in appellate courts. But that isn’t a sure thing, and the chaotic, chimerical nature of the consequences should disturb people in both parties.

The simple solution, of course, is for the Senate to actually confirm a Supreme Court justice and fill the vacancy, ending the breakdown of the judicial system. But election-year passions lock out that option until at least November, if not longer. It’s an example of how extreme political polarization is actually creating a new system of government, where executive orders and end-runs around Congress and regional Supreme Courts are not an aberration, but the rule.