Since Justice Antonin Scalia’s death in February, the Obama administration and its allies have insisted that a failure to confirm D.C. circuit judge Merrick Garland to replace him would result in chaos. In the absence of an odd number of justices, the story went, the Supreme Court wouldn’t be able to exercise oversight over the decisions of state and lower federal courts, which would end up promulgating inconsistent interpretations of federal law.
The reality has not matched the apocalyptic rhetoric. The justices tied in a whopping four cases in the Supreme Court term that just concluded, and they agreed unanimously in 39 of 81 decisions, nearly 20 percent more than in the preceding term.
If you assumed the Obama administration would welcome this consensus building and dial back its bombast, you would be mistaken. One of the four ties occurred in the immigration case brought by 26 states challenging a pair of executive actions President Obama took in 2014 to prevent nearly 5 million illegal immigrants from being deported. The tie left in place a court of appeals decision that held the president had exceeded his constitutional authority.
Following the Court’s decision, President Obama declared, “Republicans in Congress currently are willfully preventing the Supreme Court from being fully staffed and functioning as our founders intended.” No doubt the speechwriter who wrote this line—throwing the purported intentions of the Framers in the face of Republicans—patted himself on the back.
Certain legal academics joined the hysteria. “The Supreme Court sits to provide uniformity of federal law and the supremacy of federal law,” said Susan Low Bloch, a professor at Georgetown University Law Center. “When a case comes to it, and it decides it—or doesn’t decide it—4-4, then it hasn’t performed its function.”
Never mind that even if the Senate had immediately taken up the president’s nomination of March 16, there was no chance the vacancy would have been filled by the April 18 argument in the immigration case. Never mind that ties and vacancies are nothing new for the Supreme Court, and that President Obama and legal academics did not perceive them to be a threat to constitutional principles when Justice Elena Kagan recused herself from 28 cases, one-third of the total, in her first term. And never mind that Congress is free to alter the number of justices on the Supreme Court, that there is nothing special about having an odd number of justices, and that the Supreme Court is not under any obligation to resolve disagreements among the courts over federal law. Obama has weighed in, and he and his allies have intoned that the Senate’s failure to promptly confirm a ninth justice to the Court is not just dirty politics, but contrary to an original understanding of the Supreme Court’s role.
Lest anyone get away with believing that Justice Scalia is turning over in his grave because of the Supreme Court’s inability to declare a uniform understanding of federal law, a brief history lesson is in order. As a preliminary matter, “The objective of assuring uniformity of federal law,” law professor Robert N. Clinton has observed, “almost never manifested itself at the Philadelphia Convention and only rarely was raised during the ratification debates.” The notion that uniformity is essential to vindicate the supremacy of federal law is also belied by what cases the Supreme Court has historically been permitted to review. The Constitution provides that Congress may make exceptions to the Supreme Court’s appellate jurisdiction, and while legal scholars debate the precise contours of this legislative power, we know that Congress need not allow the Supreme Court (or any federal court, for that matter) to review every case that poses a question of federal law.
The Judiciary Act of 1789, which the Supreme Court itself has said is “weighty evidence of [the Constitution’s] true meaning,” created exceptions to the Supreme Court’s authority to review cases involving federal questions. While the law created the lower federal courts, i.e., district and appellate courts, it did not grant them jurisdiction to hear cases involving federal questions. (Later law did.) That meant in general state courts decided cases presenting federal questions. Equally important, the act only allowed the U.S. Supreme Court to review a state supreme court’s decision regarding the content of federal law if the state supreme court denied the federal right. If the state supreme court vindicated the federal right at issue, the U.S. Supreme Court lacked the power to exercise appellate jurisdiction over the case.
By allowing states to adopt different interpretations of the same federal law, the Judiciary Act of 1789 in effect decentralized federal law. It also created an incentive for state courts to vindicate very broad notions of federal rights, as doing so insulated them from both the review of the U.S. Supreme Court and the state legislature. Together this defeats the notion that, as a matter of original intent, the U.S. Supreme Court had any inherent responsibility to establish a uniform understanding of federal law, that there must be a single understanding of federal law for it to be “supreme,” or that the Court must have the last word when it comes to federal law.
Uniformity of federal law is not an artifact of the Constitution, but could one argue that the rise of interstate commerce and the federal administrative state in the 20th century rendered it a fundamental consideration? The answer, at least with respect to the U.S. Supreme Court’s function, is no. The Supreme Court receives 7,000 to 8,000 petitions a year and decides about 80 cases. It is fiction to say the Supreme Court has the ability to resolve every disagreement of federal law. The fact that the Supreme Court of today (unlike that of 1789) exercises discretion over its docket underscores that it has no obligation or responsibility to conform federal law to a simple meaning.
Justice Ruth Bader Ginsburg told the New York Times in her recent interview that in the best case scenario, the Senate would confirm Judge Garland during the lame-duck session after November’s election, but he would still miss most of the term’s arguments. While President Obama may rue this result, there is no need to pretend the Senate’s failure to act somehow abrogates the historic province of the Court.
Jaime Sneider is an associate at Boies, Schiller & Flexner LLP.
