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How will the Supreme Court deal with a vacancy this term – and beyond?

February 16, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, has covered the Supreme Court for more than five decades. Here is his analysis of how an eight-person  Court will function with a vacancy in its current term.800px-Supreme_Court_US_2010Under the Constitution, there can be only “one Supreme Court” – the actual language in Article III – and that is understood to mean that the Justices cannot call in temporary help.  With the death of Justice Antonin Scalia, the court very likely will finish its current term without a replacement for him.

And the polarized political atmosphere in Washington in this presidential election year suggests strongly that there might not be a ninth Justice ready even when the court reopens in October, after its summer recess.

How does the court deal with highly controversial cases when its membership at least temporarily is down to eight?  By law, it only needs six to make a quorum, so that’s not a problem. The court managed to function with eight Justices for a year between May 1969 and May 1970, when the Senate rejected two nominees before finally approving a third – Justice Harry A. Blackmun.

Those outside the court may assume that the current Justices already have been pondering what to do during the balance of this term, and perhaps beyond.  Although the early conversations about that this week will be secondary to planning for the funeral of Justice Scalia, the court must be ready next Monday to resume work on cases they have not yet heard.

And just nine days later, they will be hearing one of the most controversial cases of this term, marking the first time in nine years that they have considered the government’s power to restrict abortions – a topic certain to divide them.

One of the worst scenarios that is at least a possibility from here on, without a ninth Justice, is that several pending cases cannot be settled except by a four-to-four tie. The court is very uncomfortable with such splits, because that means it does not actually issue an opinion when deciding a case by that vote; it simply upholds the last ruling by a lower court, and no precedent is set.  It is, in short, nearly a complete waste of Justices’ and lawyers’ time.

When the Justices assemble on Friday for their first private conference after a four-week recess, the prospect of dealing with tied votes may well come up.   Of the six most controversial cases they have agreed to decide this term, three have already been heard, and three will be heard in March or in the final argument sitting in April.

On an already argued case, the Justices have cast at least one preliminary vote on a potential outcome, and a vote cast in any one of them by Justice Scalia will no longer count.

Here are the issues at stake in the three difficult cases already heard: Will the court impose new limits on the use of race in selecting the entering classes at public colleges and universities? What population measure is to be used to determine if a new election districting map fulfills the one-person, one-vote equality standard?  And will the court abolish union fees charged to non-members to cover the cost of labor bargaining – an issue threatening at least to unions representing pubic employees, and maybe in some way to unions in private industry, too?

This term’s case on the use of race in college admissions will not be at risk of a four-to-four split, even though the court has split deeply in past rulings on that issue. Without Justice Scalia, only seven Justices will be taking part this time.  Justice Elena Kagan has taken herself out of the case because she had a prior role in it as a government lawyer. Her absence definitely increases the chances that affirmative action could be facing a major cutback.

The court also has split five-to-four in prior rulings on union fees for non-members, so there is a risk of a four-to-four division on that this time.  In that situation, the court would have three options: first, order the case to be argued again in the future, in the next term if that seems a reasonable prospect; second, try very hard to find a way, perhaps on narrower legal grounds, to switch a vote or two, or, third, go ahead and issue a four-to-four decision, leaving the issue at stake unresolved, and left for another day.

The court last ruled on what one-person, one-vote means 50 years ago, when none of the present Justices were on the court.  It may be that the easiest way to decide that case, without splitting the court deeply, is to go with the reality that most states now use a total population measurement, rather than some voter-based figure.  That means that those people who don’t vote – children, prison inmates and non-citizens – would be taken into account in calculating equality among districts.  In political party terms, that is likely to be more favorable for Democratic candidates.

What of the cases not yet heard?  The issues at stake are: Did President Obama and his aides violate the Constitution and federal law by planning a massive program of delayed deportation for immigrants illegally in the country (a plan not yet in effect)?  Does the federal Affordable Care Act’s mandate of free access to birth-control methods and techniques violate the rights of religious non-profit institutions (colleges and hospitals, for example) that object based on their faith? And will the court give states more authority to regulate abortions by accepting state legislatures’ views of what is best for the health of women?

The difficulty the court will face now in anticipating those three cases is that, as of today, they have not yet been heard, and no vote has yet been cast on any of them.  The abortion question has been set for a hearing in a Texas case, on March 2, and the birth-control dispute (a collection of seven cases) is up for a hearing on March 23. A four-to-four vote seems very likely in each of those cases, given past divisions in those areas of the law.  But there appears to be no real chance that either would be set for re-argument in the future.  Both sides in each see the issues as urgent tests of where the Justices now stand on them.

The immigration case has not yet been formally set for argument, but is expected to be heard in April.  It seems not to be a candidate for postponement, since the court actually went out of its way to set up the decision for this term.

If the immigration case is not decided this term, time will run out on President Obama’s term before a postponed case could come up in the court. And both that policy and the Affordable Care Act, as a whole, seem vulnerable to major change – or nullification – if a Republican should win the presidency this year.

If the Senate balks at President Obama’s coming choice to replace Justice Scalia, all of the complications of a vacancy on the court would probably come up again in the next term, starting in October.

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