But should we really break the deadlock? In fact, the country would be better off if this temporary division of judicial power became permanent.

As a politician (a member of the Indiana House of Representatives for six years) and a scholar of constitutional law, I’ve studied democratic systems that split power between political parties. And I’ve learned that such systems can force public officials to compromise and produce decisions that work for far more people than those that give the upper hand to only one side of the ideological spectrum.

We’re seeing a glimpse right now of this dynamic with the current division between conservatives and liberals on the Supreme Court. The Court is doing more compromising, because each side has realized it can do its job only by working with the other side. Consider the Court’s recent decision on the Affordable Care Act’s contraception mandate in the Zubik v. Burwell case. Because of religious objections, several employers wanted an exemption from their obligation to include contraceptive coverage in their health plans, while the Obama Administration wanted the Court to deny the requested exemptions. The ideologically-split Court issued a blueprint for compromise. Employees will have coverage for contraception, but the responsibility for providing coverage will lie with insurers or the government rather than the objecting employers.

In other words, the Court found a middle ground that respected the interests on both sides of the issue, a result with which both sides can live.

Such a decision is a vast improvement on Supreme Court rulings that have allowed one side, with a five-vote majority, to impose its preferences on the other side, with its four-vote minority. These one-sided decisions leave the losing side—often half of the public—disempowered and inclined toward obstruction.

Like other ideologically-balanced bodies, a balanced court not only promotes compromise over conflict, it also makes better decisions. We all benefit when legal rules reflect the perspectives of both sides of the ideological spectrum rather than the views of only one side. Neither side has a monopoly on the truth; both sides have their policy blind spots. Conservative justices can steer their liberal counterparts away from misguided decisions and toward desirable decisions, and liberal justices can do the same for their conservative partners.

But, one might ask, is there always a middle ground to be found? Isn’t there either a right to an abortion, or not a right to abortion? Isn’t there either a right to bear arms or not?

The answer: even in such cases, justices can compromise. On abortion, for example, an ideologically-balanced Supreme Court could insist that a right to abortion be accompanied by greater funding for contraception, prenatal care, childcare, and other services that would it make it more feasible for women to prevent unwanted pregnancies or carry their pregnancies to term and not need to turn to abortion. The Court could recognize a right to abortion while also taking steps to make abortion truly rare.

On the right to bear arms, the Supreme Court can pair its recognition of such a right with the recognition that individual rights are subject to reasonable regulation in order to protect public safety. Hence, the Court could uphold rigorous background checks for gun purchasers and limitations on the firepower of guns that can be sold.

But, one might ask again, wouldn’t a four-to-four Court choose deadlock over compromise? After all, the current divided Court has punted on a number of key cases since Scalia’s death. Punting is an option when the four-four balance is temporary, as it is now—but punting is not so easy when the division of power is permanent. If the justices knew that there always would be an even sharing of power, they could not delay their rulings in the hope that they would later be able to secure a majority for their views.

Some observers have suggested that a four-four Supreme Court’s need to rely on compromise would preclude decisions that bring major change to the country. Rather, change would come slowly and in small steps. But that argument ignores the Court’s history. In fact, many of the Court’s landmark decisions enjoyed broad support among the justices. When the Court struck down segregated schools in Brown v. Board of Education, the vote was unanimous. On many issues, conservatives and liberals agree. Indeed, it is often said that people agree 80 percent of the time and disagree 20 percent of the time. An ideologically-balanced Court would move to the 80 percent and away from the 20 percent that seems to have dominated recent decisions.

Imposing a balance between liberals and conservatives on the Supreme Court may seem odd, but something similar has been done in New Jersey for many years. Under a nearly 70-year tradition, Democrats and Republicans each hold three of the state supreme court’s seven seats, with the governor’s party getting a fourth seat when the seventh seat becomes open. That way, both sides of the ideological divide always have at least three of the seven seats. And this division of power has worked very well. Legal scholars have measured the extent to which the decisions of a supreme court in one state influence the decisions of supreme courts in other states. The New Jersey Supreme Court regularly ranks as one of the most influential. In 1976, for example, the New Jersey Supreme Court led the way in recognizing the right to make medical decisions at the end of life in the landmark Quinlan case.

Dividing power between conservatives and liberals reflects a key principle for effective governance—if you want everyone to work together on behalf of the common good, you have to give everyone a meaningful voice in their government. If we want liberals and conservatives to respect the Supreme Court’s decisions rather than battle bitterly over them we need to ensure that the views of both sides of the ideological spectrum are represented in the Court’s opinions.

The post Make the Supreme Court’s 4-4 Split Permanent appeared first on Zócalo Public Square.

But, much as we might hate to admit it, Scalia was right when, in the same dissent, he argued that California isn’t part of the American West. And in so doing, he raised—almost certainly unwittingly—an important question about California’s future.

Scalia made his point via a swipe at his colleagues for being unrepresentative of the United States as a whole (and thus being foolish to impose their views on marriage equality on the entire country). After noting that all nine justices attended Harvard or Yale law schools and that only one grew up in the Midwest, he wrote: “Not a single Southwesterner or even, to tell the truth, a genuine Westerner.” But what about Justice Anthony Kennedy, who is from Sacramento? Scalia’s answer came parenthetically in the next line: “California does not count.”

The words “California does not count” prompted an array of California pundits and leaders to fly off the handle, and challenge the justice. How dare he disrespect California? Of course we count! “Antonin Scalia Doesn’t Heart California—or Get Us, Either,” said an LA Times headline.

Kamala Harris, California’s Attorney General and leading candidate for U.S. Senate, coolly countered Scalia—an old-school “originalist” who thinks the U.S. Constitution should be read as it was in 1789—with a line from old-school rapper Ice T: “Don’t hate the playa, hate the game.” You should know that Ice T’s line was inspired by one from Gandhi’s 1927 autobiography (“Hate the sin not the sinner”) and St. Augustine’s 424 A.D. letter (“with love for mankind and hatred of sins”), so Harris out-originalist-ed the originalist Supreme Court justice by more than 1,300 years. Snap.

Despite all the California retorts, Scalia’s fundamental point went unchallenged, perhaps because it is so clearly correct: California doesn’t fit in the American West. Or anywhere else, for that matter.

Indeed, the best book ever written about California—Carey McWilliams’ California: The Great Exception, published in 1949 and never out of print—is about precisely this reality. California is singular, among Western U.S. states, in how it was settled so early and grew so quickly. Our Western neighbors have always been slower, more plodding, less populous places. And so California became a ragtag giant among much smaller states in the West, defined by our sudden and explosive changes in culture, economy, and demographics.

“One cannot, as yet, properly place California in the American scheme of things,” wrote McWilliams, adding: “To understand this tiger all rules must be laid to one side. All the copybook maxims must be forgotten. California is no ordinary state; it is an anomaly, a freak, the great exception among the American states.”

Sixty-six years after those words were published, California is still an exception in many ways—we’re the only state to break ground on high-speed rail, we’re responsible for half of the country’s venture capital, and no one is as crazy about direct democracy as we are. Some, like the economist Bill Watkins at California Lutheran University, predict that coastal California will become even more exceptional, an ever-more-glittery playground for the global super rich, with the rest of California being populated by the working-class people who serve them.

But there is another possibility—that our state (or at least everything except the other-worldly Bay Area)—continues to change in ways that make us more closely resemble other Western states.

The crucial shift in this direction has been that California is no longer a state of arrival, a destination for the world. Immigration is flat. Over the last generation, more people have been leaving California for other states than have been moving here from the rest of the country. The high cost of living has been the prime force for driving out mostly lower-income folks.

Those outflows have given us more in common with neighboring states like Nevada, Arizona, Utah, Oregon—in two ways.

First, those states, having received so many Californians seeking more affordable housing, have effectively been colonized by us, and are beginning to vote and eat more like California. All four now have In-N-Out Burger outlets, as does Texas, another big destination for exiting Californians. And as we made huge hikes in tuition and limited enrollment in our public universities, more California high school graduates are heading to public universities in neighboring states. (I’ve seen see this phenomenon firsthand since I teach at Arizona State University).

Second, those of us left behind in California are also more Western—because we are more likely to have grown up here. In previous generations, California was populated by people from Asia, Latin America, and the American Midwest and South. But in today’s California, the majority is homegrown—born and raised in California—and the newer arrivals are more likely to be from Las Vegas than Little Rock.

This more-homegrown California is also becoming much older—and less dynamic. We remain more ethnically and racially diverse than other Western states, but there are signs that our diversity lead is narrowing. While out-migration from California slowed somewhat during the recession, it’s likely to pick up as our economy comes back and California becomes even more expensive.

It’s not just demography making us more Western; drought has a role too. We’re becoming a drier place, with dustier landscaping that resembles Arizona and Nevada. Last year, we finally regulated groundwater, as other Western states have been doing for years.

Of course, these trends could all change. But if they persist, and California continues to Westernize, it will pose questions for our state and our country. The fact that California was so exceptional often accelerated change nationwide. As the historian H.W. Brands has noted, the American dream was of slow, tedious Poor Richard’s Almanac-style growth until California became a state—and gave us a new, faster dream of rapidly accumulated wealth. Will it be good for us, and for America (Happy Birthday, by the way), if we become just another Western state?

For now, you are right, Justice Scalia. California doesn’t really count as Western. But time has a way of changing the meaning of many things, including marriage and our messy state.

The post Justice Scalia Is Right. California Isn’t the Real West appeared first on Zócalo Public Square.