In analyzing the various strategies of the coming battle over a Supreme Court nominee, most of the focus has been on how it will be handled by the President and Republicans in the Senate. Similarly, outcomes have been discussed in terms of how they will affect the 2016 election. Those are all important to consider. But it is also interesting to think about how this might affect the current members of the Supreme Court and what, if any, role they might play.
Any case that is currently pending before the court, as well as any that are considered while there is a vacancy, will now be decided by eight members who have traditionally divided 4/4 on many issues. When/if that happens going forward, the lower court’s ruling stands. Some people have been looking at the possible scenarios that poses for cases that affect public unions, affirmative action, redistricting, abortion, immigration and Obama’s Clean Power Plan. Based on previous court rulings, that poses good news on some of these issues (i.e., climate change) and bad news on others (i.e., immigration).
But what I found most interesting is how Ian Millhiser talked about the kind of chaos that might ensue without definitive rulings from the Supreme Court. For example, here is how he describes that with respect to the court challenge on President Obama’s executive orders on immigration.
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
That is just one example. Millhiser goes on to discuss similar outcomes in other cases.
This will put tremendous pressure on the current justices to avoid the prospects of 4/4 splits on these decisions. And no one will feel that pressure more than Chief Justice John Roberts – who has shown a great deal of concern for the reputation of the Court over which he presides.
It will also be interesting to watch whether or not the Chief Justice will eventually weigh in if the Senate refuses to consider a nominee over the next year (and possibly beyond). While his standing among the most conservative members of the Republican Party is pretty low after the Obamacare decision, I doubt he’ll stay silent if this goes on too long.
As I wrote previously, the increasing polarization we’re seeing in our body politic is now likely to threaten the very functioning of the Supreme Court. I doubt that the current Justices – no matter their ideology – are going to be willing to sit idly by and allow that to happen.