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Monthly Archives: May 2016

Fit to Be Tied

Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN.

Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.

There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court.

Pidot begins with a little history. The basic rule that a tie vote leads to an affirmance of the lower court decision—but does not establish any binding precedent—is almost as old as the Republic itself. It dates back to the Court’s 1792 decision in Hayburn’s Case, when a six-justice Court divided equally on whether our nation’s first Attorney General, Edmund Randolph, had the authority to file a petition for mandamus ex officio.

Next, Pidot sets out the results of his empirical analysis of tie votes between 1925 and 2015. (He chose the starting date because the 1925 Judiciary Act made it so the vast majority of the Supreme Court’s docket would be at the Court’s own discretion, via a writ of certiorari.) Pidot limits his study to cases where the Court is equally divided on the judgment, rather than where the Court is equally divided as to the reasons for the judgment. Pidot also excludes from his dataset motions—such as requests for stays or writs of mandamus—that the Court denied because of a tie vote.

Within these parameters, Pidot finds 164 tie votes during the period from 1925 to 2015. He reports that in 149 of these, the Court did not identify how each of the voting Justices voted, and neither the Court as a whole nor any individual justices provided any reasoning or explanation in support. This is consistent with the one-sentence rulings we have seen from the Court so far this Term: “The judgment is affirmed by an equally divided Court.”

Pidot then turns to the fifteen cases that do not fit this description. In some, the Court noted its equally divided vote on a particular issue as part of a larger opinion resolving the case on other grounds. (This happened again just recently in Franchise Tax Board v. Hyatt, where the post-Scalia Court split 4-4 on whether to overrule Nevada v. Hall, but a 6-2 majority reversed the lower court’s judgment on other grounds.) In others, the Court divided equally as to one party but made some other disposition as to other parties—such as dismissing cert as improvidently granted (a “DIG”), or granting cert but vacating and remanding for reconsideration in light of some other decision (a “GVR”). Pidot also found one fascinatingly odd case where the Court granted certiorari and—in the same order and without merits briefing or oral argument—affirmed by an equally divided court. There were only three cases in the dataset where any justices authored an opinion that explicitly revealed their views about the particular issue on which the Court divided equally.

Pidot’s article also explores the normative implications of 4-4 ties. The major practical downside of such decisions is that they can compound a lack of uniformity in the federal judiciary, because they fail to generate binding precedent that otherwise could have resolved disagreements among lower courts. These concerns have prompted some to call for institutional changes—such as the appointment of substitute justices—to avoid tie votes.

To assess the extent to which this has been a problem, Pidot looks at the 21 tie votes that occurred between 1986 and 2010. He argues that the lack of precedential decisions in those cases did not significantly undermine uniformity. It remains to be seen whether this will still be the case if we find ourselves in a sustained period of only eight justices—rather than the more typical situation where eight-justice decisions result from occasional recusals in particular cases. But Pidot’s findings from these 21 cases are very interesting. He identifies six cases where there had not been a split of lower court authority before the Court granted cert; thus the lack of a binding Supreme Court decision did not allow a lack of uniformity to persist. In nine cases where a circuit split did exist, the Supreme Court granted cert in a later case and resolved the disagreement. For cases in this category, the two longest delays between the 4-4 affirmance and the later cert grant were nine and ten years; all of the others were four years or less (in one instance, the Supreme Court decided a follow-up case within five months). Pidot also finds two examples where a split was resolved notwithstanding the 4-4 Supreme Court affirmance, either because some lower courts changed their position or because the Executive Branch promulgated clarifying regulations. He concludes that there were only three examples during this period where an important circuit split remained unresolved following a tie vote at the Supreme Court.

Pidot proposes one change to the way 4-4 votes are currently handled. He argues that the ultimate result of a tie vote should not be an affirmance of the lower court. Rather, the Court should DIG such cases. This would have the same practical consequence of leaving the lower court decision intact. But Pidot finds a DIG preferable to affirmance for several reasons. Among other things, having justices cast affirmative votes on the merits risks biasing those justices in future cases, due to psychological dynamics such as confirmation bias, cognitive dissonance, and the “lock-in effect.” He also contends that an affirmance based on a tie vote can undermine the legitimacy of the Court—furthering the perception that the Court is political rather than impartial, raising ethical questions in future cases by indicating that justices have prejudged a particular issue, and encouraging gamesmanship by highlighting who the tie-breaking justice will be (the one who did not vote in the case that generated the 4-4 tie).

Pidot recognizes, however, that many of these concerns are not absolute. For example, judges do change their minds on certain issues. My favorite “exception that proves the rule” is Free v. Abbott Laboratories—a case that Pidot identifies as a tie vote where the issue left unresolved was addressed on the merits in a later Supreme Court decision. The Court had granted cert in Free to resolve whether supplemental jurisdiction is available for certain kinds of claims, but Justice O’Connor recused herself and a 4-4 tie ensued. When the Court revisited that issue in Exxon Mobil v. Allapattah, O’Connor was in the minority—even though the membership on the Court had not changed. So one of the justices in the Allapattah majority (Rehnquist, Scalia, Kennedy, Souter, or Thomas) must have changed his view after the vote in Free.

The current stand-off over filling Scalia’s seat on the Supreme Court means that tie votes at the Supreme Court present a more crucial challenge than ever. Pidot’s article is a must read for anyone who wishes to wade into this important topic.

Cite as: Adam N. Steinman, Fit to Be Tied, JOTWELL (May 18, 2016) (reviewing Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN), https://courtslaw.jotwell.com/fit-to-be-tied/.

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

This is a strong claim, and one that the authors stop short of making when assessing most of the procedural decisions. But at times they come close. Consider, for example, their bottom-line assessment of why Judge Crabb of the Western District of Wisconsin granted summary judgment for the plaintiffs but delayed issuing an injunction or a stay for a week: “The most plausible explanation for this bizarre turn of events is that it was a deliberate effort to allow marriages to proceed before the court of appeals put them on hold.” Or consider their characterization of the Fourth Circuit’s denial of a stay as “inexplicable” (p. 305), and the judges’ order as revealing “what can charitably be described as deliberate indifference” to the contrary orders of the Supreme Court and other circuits.” (P. 306)

The authors do not declare themselves on the substantive correctness of Windsor or Obergefell, and it might be that the two are not of the same mind on that point. But it would be difficult to dismiss their critical assessments of “the process of marriage equality” as the product of disgruntlement with the Supreme Court’s adoption of a constitutional right to same-sex marriage. After all, their descriptions of the core issue as one of “marriage equality” and of the state laws at issue as “bans” come straight from the plaintiffs’ playbook.

The authors’ criticisms appear to arise, instead, from a sense that much of the confusion and disorder surrounding a domain that should be marked by clarity and order was unnecessary. This can be seen in the way that they praise the decisions of some of the lower courts that they examine. They describe as “particularly measured,” for example, the path chosen by lower courts that held invalid “bans on same-sex marriage, but put their judgments on hold pending the review process.” (P. 291.) They quote Judge Heyburn of the Western District of Kentucky, who expressed empathy with plaintiffs’ desire for quick action but stayed his judgment nonetheless, because “[i]t is the entire process … which gives our judicial system and our judges such high credibility and acceptance.” (P. 292.) “It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.” (P. 292.) These are the words of the quoted judge, but they also express the thoughts of Blackman and Wasserman.

A primary difficulty with the process, they observe, is that the Supreme Court sent conflicting signals from its perch at the top of the federal judicial hierarchy. The Court initially ordered stays, presumably to maintain the status quo pending its resolution of the merits. But the Court then denied certiorari in the stayed cases, and subsequently declined to issue stays. The consequence was predictable. “[L]ower courts appeared conflicted about what to do with the penumbras emanating from the shadow docket—whether to decide cases by exercising their best judgment in light of existing precedent or to be guided by the Court’s non-precedential and unexplained signals.” (P. 285.)

Despite their evident disdain for result-oriented proceduralism, Blackman and Wasserman ultimately counsel lower courts against any “formalistic approach [that] disregards the Supreme Court’s role as traffic cop in major constitutional cases.” (P. 323.) Once the Supreme Court has taken an interest in high-stakes constitutional litigation, they argue, lower courts should put a hold on their injunctions and let the Supreme Court dictate the pace of constitutional change. (P. 324.)

There is a pragmatic streak that runs through the authors’ proceduralism. They carefully discuss, for instance, the formal legal differences between the binding authority of precedents and of injunctions. But they also acknowledge circumstances, such as when there has been a final appellate ruling, in which officials who are not formally bound by a ruling should nonetheless act as if they are. That is sometimes “the cheapest, simplest, and likely least controversial move.” (P. 272.)

Although the authors are critical of courts throughout, Blackman and Wasserman do not limit their criticisms to the courts. They devote one of the article’s three principal sections to an unsparing assessment of the unavailing attempts of state officials to use unpersuasive abstention theories to slow down federal court adjudication of states’ marriage laws.

Overall, however, the focus of The Process of Marriage Equality is on the courts, and the balance of the assessment is critical.

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers view Obergefell more like Brown or more like Roe, the record of the process that led to Obergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.

Cite as: Kevin C. Walsh, Process Failure on the Road to Obergefell, JOTWELL (May 2, 2016) (reviewing Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN), https://courtslaw.jotwell.com/process-failure-on-the-road-to-obergefell/.