Consequences of a divided court? Legal chaos? Legal Balkanization?

Think Progress has an interesting article on what it calls “The Simply Breathtaking Consequences Of Justice Scalia’s Death”.



The article also discusses pending cases involving birth control, unions, redistricting, affirmative action, and the environment.

How accurate is this analysis? Could the immigration issue cause a constitutional crisis with a divided court not even able to determine how to handle such a split in opinions? Could we end up with Roe v. Wade being in effect in some states but not others? Could Republican recalcitrance in even considering nominees cause even more disruption and damage than their obstructionism has in the past, or is this much ado about nothing?

Pretty accurate.

The article did not say there would be a constitutionally crisis, so I’m not sure where you’re getting that from.

No. Again, the article did not make that claim, so I’m not sure where you’re getting that from.

A little bit to do about something, but it seems you’ve either misread or over-interpreted what the article is saying.

It didn’t use those words, but it did suggest that a situation could (not would) occur for which the resolution is unclear.

I think it pretty clearly says something that can be categorized as “Roe v. Wade being in effect in some states but not others”".

You can certainly disagree with the article or with my interpretation of it, but it’s hard for me to see how you can say that it’s unclear where I get my interpretation from.

Resolution happens when the empty seat eventually gets filled.

No. Roe v Wade will “be in effect” in all states, as it is now. There are already states where it is very difficult for women to get abortions. Will more states become like that? Maybe. But saying Roe v Wade would be in effect is simply wrong.

Keep in mind that TP is not an objective news outlet. It is agenda driven, so reading it as if it were the NYT is a mistake in the first place. Don’t let the weasel words trip you up.

For most women who need abortions (lower income women) many of the most conservative parts of the country already have access at all time lows, with many people living hundreds of miles away from clinics that are overloaded with appointments–sometimes they can’t even get people in in a timely fashion to terminate the pregnancy before it moves into a later term.

For wealthier women of course the option to travel to more friendly environs is already available to them.

I don’t see any circuit decisions that will meaningful change the current abortion status quo.

It’s also worth noting that the vast majority of SCOTUS decisions are not 5-4 decisions. The SCOTUS hears around 100-150 cases per term, and only a small handful of them make the news or are very controversial–lots of them are important though, but maybe not important in a “spectacular” way, and most of them are decided with broader margins.

More likely, the court would defer hearing cases that would otherwise go 4-4 until the seat is filled.

… How would they determine that?

Really? Has that ever happened before?

There’s a precedent for doing it for cert applications, but I’ve not heard of doing it for cases that are actually under appeal.

After Abe Fortas resigned from the Court, there were a number of pending cert applications that had votes from 3 justices, but had been voted against by the other 5 justices. It takes 4 votes to get cert, so there was a possibility that the new justice would vote in favour of cert. The Court put all those 3-5 cert applications into a file, “Hold for Justice X.”

It took a while before Justice X appeared. Fortas resigned on May 14, 1969. Nixon then had trouble getting his nominations approved to replace Fortas: the Senate rejected his first nominee, Clement Haynsworth by a 55-45 vote, and then rejected Nixon’s second nominee, G. Harrold Carswell, by a 51-45 vote.

Finally, on May 12, 1970, the Senate confirmed Nixon’s third nominee, Harry Blackmun, by a 94-0 vote.

So the Court was short a member for almost exactly a year. The “Hold for Justice X” file must have been getting big.

(Source: The Brethren by Woodward and Armstrong.)

As an aside, just to show how much things have changed in Washington, look at the breakdown of the two votes to reject:

Haynsworth: Of the 55 Senators who voted against him, 38 were Democrats and 17 were Republicans; of the 45 who voted for him, 19 were Democrats and 26 were Republicans.

Carswell: Of the 51 Senators who voted against him, 38 were Democrats and 13 were Republicans. Of the 45 who voted for him, 17 were Democrats and 28 were Republicans.

There are any number of legal issues out there on which two Circuits are divided. The Supreme Court treats this as a favored reason for taking a case, but it’s hardly automatic. These splits persist, and lawyers work around them. Uniformity is an aspiration but not a requirement.