A one-line opinion. That's what the Supreme Court gave us this week, in what many expected to be one of the biggest cases of the year. At stake in Freidrichs v. California Teachers Association was the ability of public-sector unions to collect fees from non-joiners unwilling to pay for the unions' collective bargaining efforts. Some thought the fate of the American labor movement hinged on the outcome. The court had mountains of materials to consider. But it said only this: "The judgment is affirmed by an equally divided Court."

If the Republican Senate keeps stonewalling Judge Merrick Garland's nomination, pretending that it can discharge its advice and consent duty by doing nothing, get used to hearing that sentence. This year, contraception, abortion, voting rights, religious freedom and affirmative action are on the court's docket. Next year and beyond we can expect cases on guns, campaign finance and the balance between security and privacy.

But an incomplete court will deadlock 4-4 on many of these issues. If the Senate doesn't confirm a nominee before the November election, we'll go well into 2017 with only eight justices. Two years of division, along predictable ideological lines. Whatever issues you care most about, odds are high that an eight-member court would divide, left versus right, straight down the middle.

Our faith in the judiciary will erode if the partisan gridlock paralyzing Congress spreads to the court. And, practically speaking, a deadlocked court has just two options: it can affirm lower court decisions without resolving the issue nationwide, as it did in the unions case, or it can delay by setting the case for reargument when there's a full bench.



When the Supreme Court picks the first option and affirms lower court decisions 4-4, we end up with what Vice President Joe Biden last week called a "patchwork Constitution." Laws constitutional in some parts of the country would be unconstitutional in others. Federal laws that mean one thing in one region would mean something different in another. Your federal rights would depend on where you live. A patchwork Constitution undermines the rule of law and is hardly a Constitution at all.

A patchwork Constitution would also worsen the inequality that already plagues our legal system. The rich and powerful could use regional differences in the law to play games, selectively bringing suits in their preferred jurisdictions. Multinational corporations like Chevron or rich nonprofits like Citizens United would hire pricey lawyers to exploit differential law. Rather than submitting to nationally uniform laws, the wealthy could pick the versions of national law that suit them best.

But not everyone would have that option. For the woman in Texas seeking an abortion, the Fifth Circuit would have the last word. For Lilly Ledbetter seeking equal pay for equal work, it would have been the Eleventh Circuit. And someone wrongfully imprisoned would have no choice of which court to appeal to. Basic fairness precludes trapping ordinary Americans while the rich and powerful get to choose the federal circuits with the legal interpretations they prefer.



The only option for avoiding split decisions that leave lower court conflicts in place is to delay deciding altogether until there is once again a full high court. But that could mean delaying for well over a year. And delay is unjust when constitutional rights hang in the balance. Delay creates uncertainty about the status of individual rights and key economic claims. And, as the Supreme Court has said, "liberty finds no refuge in a jurisprudence of doubt."

There is no justification for delaying a Senate vote until a new president takes office. The excuses for doing so come down to treating the incumbent president as though his term expired long before four years were up or, worse, as though nearly 66 million people voted for someone ineligible to occupy the White House.