The Supreme Court today issued its first evenly split ruling since the death of Justice Antonin Scalia: a decision in a minor banking case called Hawkins v. Community Bank of Raymore involving spouses who serve as guarantors for each other’s debts. The spouses claimed that they were forced to sign the guaranties due to their marital status which allowed them to claim discrimination under the Equal Credit Opportunity Act (ECOA) which prohibits discrimination based on marital status. The issue was whether the spouses, by being guarantors as opposed to an actual borrowers, qualified under the ECOA which applies only to credit applicants.The Eighth Circuit said that a guarantor was not an “applicant” since they were not directly seeking credit for themselves but instead were just guaranteeing a note for their spouses.The 4-to-4 ruling was “per curiam,” which means it was handed down in the name of the entire court, so nobody really knows what justice was on which side and it contained no opinion so there is no reasoning as to why each side voted the way it did. The opinion was just one line long: “The judgment is affirmed by an equally divided Court.” Like all 4-4 rulings this ruling sets no nationwide precedent and leaves the lower-court ruling as the final decision in the case. Other Circuit Courts, like the 6th Circuit have ruled that guarantors are applicants under the ECOA. Normally, one of the Supremes’ main jobs is to resolve a split between the Circuit Courts. Oh well.
And while this might be an esoteric banking case, it highlights the problem with an 8 person court. Leaving the law unsettled for now could be either good or bad for major cases where future splits are a possibility — including pending disputes on abortion, affirmative action, public union fees, immigration and contraception coverage under the Affordable Care Act. Those cases will likely be decided now on the basis of geography. In the public union fees case, for example, a 4-to-4 split would be an important victory for labor, since union advocates won that case in the U.S. Court of Appeals for the 9th Circuit, which is one of the most liberal Circuits.
A 4-4 split ruling in a key Texas abortion case, from the much more conservative 5th Circuit, would uphold major restrictions on a women’s access to reproductive services, since the lower-court ruling upheld the Texas abortion clinic regulations that were at issue.
It looks nearly impossible that the Senate will confirm or even consider the nomination of Merrick Garland even after this election so this stalemate could be with us for a very long time. A new president would not likely get a nominee before the Senate until February 2017 and then depending on the nominee and the current makeup of the Senate, it could be a lengthy confirmation process I wish the Senate would listen to a well-respected Supreme Court Justice who once lamented about an 8 person court:
“The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”
That was Antonin Scalia by the way.
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