Outside the Beltway

Supreme Court Begins New Term Short A Member And Without Any Real Blockbuster Cases

The Supreme Court begins another term faced with the prospect of having to spend much of their time dealing with the fact that they're short a member.

Doug Mataconis · Monday, October 3, 2016 · 6 comments

The Supreme Court, still down one member in the wake of Justice Scalia’s death and the refusal of Senate Republicans to consider President Obama’s nomination of Judge Merrick Garland, or any nomination, until a new President has taken office, began its new term today looking forward to a term that, at least for now, does not include any blockbuster cases:

WASHINGTON — The Supreme Court, awaiting the outcome of a presidential election that will determine its future, returns to the bench this week to face a volatile docket studded with timely cases on race, religion and immigration.

The justices have been shorthanded since Justice Antonin Scalia died in February, and say they are determined to avoid deadlocks. That will require resolve and creativity.

“This term promises to be the most unpredictable one in many, many years,” said Neal K. Katyal, a former acting United States solicitor general in the Obama administration now with Hogan Lovells.

There is no case yet on the docket that rivals the blockbusters of recent terms addressing health care, abortion or same-sex marriage. But such cases are rare, whether there are eight justices or nine.

“This term’s cases are not snoozers,” said Elizabeth B. Wydra, the president of the Constitutional Accountability Center, a liberal group. “This term features important cases about racial bias in the criminal justice system, voting rights and redistricting, immigration and detention, and accountability for big banks that engaged in racially discriminatory mortgage lending practices.”

There are, moreover, major cases on the horizon, including ones on whether a transgender boy may use the boys’ restroom in a Virginia high school and on whether a Colorado baker may refuse to serve a same-sex couple.

“If either of these cases is taken, it will almost immediately become the highest profile case on the court’s docket,” said Steven Shapiro, the legal director of the American Civil Liberties Union.

There is also the possibility that a dispute over the outcome of the presidential election could end up at the Supreme Court, as it did in 2000 in Bush v. Gore.

“That is the doomsday scenario in some respects of having an eight-member court,” said Carter G. Phillips, a lawyer with Sidley Austin. A deadlocked Supreme Court would leave in place the lower court ruling and oust the justices from their role as the final arbiters of federal law.

Race figures in many of the new term’s most important cases, including two to be heard in October, and that seems to be part of a new trend. “The court hasn’t had a lot of cases recently dealing with race in the criminal justice system,” said Jeffrey L. Fisher, a law professor at Stanford.

In June, a dissent from Justice Sonia Sotomayor brought a new perspective to the issue. Citing James Baldwin’s “The Fire Next Time” and Ta-Nehisi Coates’s “Between the World and Me,” she insisted that the brutal history and contemporary reality of racism in the United States must play a role in the court’s analysis.

That dissent may prove influential, said Justin Driver, a law professor at the University of Chicago. “One item to keep an eye on this term,” he said, “is the extent to which the Black Lives Matters movement makes its presence felt on the court’s docket.”

As it was for most of the most of the last four  months of last year’s term, the Court will be hobbled by the lack of a full bench of nine Justices. Given current political realities, it seems as though this will continue into early this year absent some intervening political factors. For example, if Hillary Clinton wins the Presidential election next month, which seems to be the most likely outcome at this point, Senate Republicans may decide to act on the nomination of Judge Garland and approve him notwithstanding previous pledges in order to avoid the possibility of a President Clinton nominating someone further to the left than Garland who could end up serving on the Court for decades to come. If Donald Trump manages to win the election, of course, Republicans will decline to act on the Garland nomination and leave selection of a new Justice to the new President. Alternatively, if Democrats win control of the Senate they could act on Garland’s nomination during the period between the start of the new Congress on January 3rd and the Inauguration of the new President, although that would require President Obama to resubmit the nomination since the one he made last year would lapse with the end of the current session of Congress with the start of the new year. Each of these scenarios would mean that a new Justice would not take the bench until some time in January at the earliest. Finally, Congress may have have to wait for the new President to take office and submit a new nominee to the Senate. This would most likely mean that the Justices would be short a member until at least February or March of next year. At that point, there would only be 3- 4 months left in the Court’s new term, meaning that the new Justice would not be participating in the vast majority of cases the Court will consider over the coming eight months.

Lyle Denniston notes that the Justices appear to be taking this into account in the manner in which they are scheduling oral argument:

[T]he Supreme Court will be moving forward, trying as best it can to conduct business in as normal a fashion as it can, and making probably a considerable effort to avoid splitting 4-to-4 on significant decisions, because that settles nothing. It wants, if it can, to avoid a repeat of the incident last term when one of its highest profile cases – testing the legal fate of President Obama’s major immigration policy initiative – split the Justices evenly. That split left that policy at least in limbo, if not actually doomed, without a final judgment by the Justices on its legality or its constitutionality.

There have been small hints that the Justices, in dealing with cases already granted for review and in selecting new cases to decide, actually are trying to delay if not avoid getting involve in major disputes that could be a challenge for an eight-member court.

Although the court has chosen, as of now, three dozen cases for decision during the new term, not one of those cases rises to the level of some of the major controversies that have been before it in recent terms – like the question of same-sex marriage, the fate of the broad new national health care law, attempts by state legislatures to restrict abortion rights, and, of course, the Obama immigration policy.

Perhaps the one case already scheduled for review that seems most likely to produce a deep division among the Justices – the right of religious schools to share equally in state-operated benefit programs – has been kept on hold without a hearing set for it, presumably because the court has been hoping that it would have a ninth Justice to join in deciding that case and thus avoiding a split.   Issues of religious freedom have deeply divided this court, and that case stands right in the middle of that controversy.

As we saw last term, the Justices managed to be fairly good at limiting the number of 4-4 cases that came down in the wake of Justice Scalia’s death. In several cases, in fact, it appears as if the desire to avoid a tie decision that left the law unclear beyond the immediate case that was before the Court propelled the Court into reaching agreement in situations where the conservative and liberal wings of the Court managed to reach a decision on the merits rather than leave the case, and the law, in limbo. This doesn’t mean there weren’t 4 -4 decisions, of course, because in some situations such a decision was unavoidable but for all the controversial cases before the Court last term it was somewhat surprising that the Court was able to reach a decision on other cases rather than deadlock over and over again. It was a good thing both for the Court as an institution and for the state of the law that they were able to do this, but it’s not over yet. Given the current political reality, the Justices will have to find a way to continue to compromise for much of the upcoming term whether they like it or not.