Slowing down

WITH five votes, the late Justice William Brennan liked to tell his clerks, “you can do anything around here”. The rule still applies after the death in February of Antonin Scalia. But with only eight justices remaining, the magic number of five is now harder to come by. Twice since Mr Scalia’s death the Supreme Court has performed the judicial equivalent of throwing up its hands. In a small case concerning banking rules and in an important one challenging the future of public-sector unions, the justices issued one-sentence per curiam (“by the court”) rulings: “The judgment is affirmed by an equally divided court.” A tie in the high court means that the ruling in the court below stands. But these non-rulings do not bind other lower courts, and the judgment has no value as a precedent. A tie, in short, leaves everything as it was and as it would have been had the justices never agreed to hear the case in the first place.

That’s a lot of wasted ink, paper, time and breath. And now it seems the justices may be keen to reduce future futile efforts as they contemplate a year or more with a missing colleague. Only 12 cases are now on the docket for the October 2016 term, and grants are lagging below the average of recent years. The slow pace is especially notable because it marks a slowdown from an already highly attenuated docket. Seventy years ago, the justices decided 200 or more cases a year; that number declined to about 150 in the 1980s and then plummeted into the 80s and, in recent years, the 70s. The justices will grant more cases in dribs and drabs following their conferences in May, June and September (followed by more conferences throughout the autumn and winter), but early indications are that the next term may be one of the most relaxed in recent memory.

What’s wrong with eight justices? The main worry is that tied votes sow legal confusion. When the judges are split down the middle, they cannot resolve rival views on controversial issues—from affirmative action and public unions to gay rights, birth control and abortion. By letting lower-court decisions stand but not requiring other courts to abide by the ruling, the stage is set for odd state-by-state or district-by-district distinctions when it comes to the meaning of laws or the constitution. This seems to be the worry that prompted the justices to search for a compromise, after hearing arguments in March in the latest fight over Obamacare and contraception. One federal district court has said that the law’s compromise violates a law of 1993 banning the government from unduly interfering with other people’s religious scruples. Half a dozen other appellate courts have come to the opposite opinion. So if the justices divide 4-4 in Zubik v Burwell, women across most of America will have access to birth control through their employer’s health coverage, while women in seven midwestern states will not.

Some legal scholars argue that an eight-justice bench isn’t so bad. Eric Segall, of Georgia State University, thinks the 4-4 ideological divide is pushing justices to moderate their arguments in an effort to win votes from their colleagues on the other side. “To accomplish their goals,” Mr Segall writes, “the justices would simply have to get along better.”

Just such a compromise may have led to a recent voting-rights decision, Evenwel v Abbott. After the oral argument in December, most pundits were expecting a 5-4 decision upending the common understanding of “one person, one vote” (counting everybody) in favour of counting only eligible voters, a scheme favouring whiter, wealthier, districts. But the justices came out 8-0 in the other direction. The four liberals seem to have attracted the conservatives’ votes by lowering the temperature a bit: the constitution allows states to use total population as the basis for drawing districts, Ruth Bader Ginsburg wrote for her colleagues, but the question of whether it requires them to do so is off the table until a case forces it back on.

Yet it is hard to see how a denuded court is appealing in the medium or long term. A patchwork of legal realities may have been fitting for America under the Articles of Confederation, before the country had a political system that turned it into a union, but America’s constitutional design is not consonant with confusion about what the law means on controversial questions. Whether the divide manifests as 4-4 splits or a tendency to hear fewer cases in which those splits seem likely, a Supreme Court with eight judges is not a court that can live up to its name.