Constitution Daily

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With one seat vacant, the Supreme Court returns

September 30, 2016 by Lyle Denniston


Lyle Denniston, our Supreme Court correspondent, previews the Court term that starts on Monday and the challenges potentially brought by a close election and an empty seat on the bench.640px-Inside_the_United_States_Supreme_CourtStill somewhat hobbled without a ninth Justice to complete its bench, the Supreme Court returns to work in public next week with no way of knowing when that vacancy will be filled, and which president will name the occupant – President Obama, or his successor.   The future of the court, not just in the next few months but well beyond, depends on how that constitutional task is carried out.

At the start of a new term on October’s first Monday, the eight Justices might actually be destined to work through next February or even later with the uncertainty over how the political branches – specifically, the White House and the Senate – make up their minds on a replacement for the late Justice Antonin Scalia.  He died almost eight months ago, and a successor chosen by Obama has been waiting almost seven months for an end to the political impasse over the empty seat.

Scalia’s death, and the ideological leanings of the eight Justices now on the court, have raised the prospect that a new ninth Justice could well be in a position, perhaps for years to come, to cast a deciding vote to move the court left or right.

Just over five weeks after the court reopens, some clarity on the succession question may at least begin to emerge when the votes that Americans cast on November 8 are counted.  If there is a clear winner, and at this point that, too, is uncertain, the new president will inherit the opportunity to nominate a new Justice.

Although there is a possibility that the Senate might be coaxed into voting on President Obama’s nominee, Circuit Judge Merrick B. Garland, in a post-election, “lame duck” session, the more likely prospect is that Garland’s nomination will expire at the end of the current session of Congress without any Senate action.

Given how close the race between Democratic nominee Hillary Clinton and Republican nominee Donald Trump appears to be in the campaign’s waning weeks, it is not beyond the possible that the Supreme Court itself – even a short-handed court – might have to resolve a post-election controversy over who won the office – that is, who had gained at least 270 votes in the Electoral College. That happened 16 years ago, and the Supreme Court ended that controversy with a ruling that had the constitutional effect of making George W. Bush the winner.

In recent months in the presidential campaign, there has been some talk, based on little dependable evidence, that this year’s election might turn out to have been “rigged.”  But even without that deeply unsettling chance, there could be a number of vote-counting disputes that could keep the outcome in doubt, perhaps for weeks.

In the meantime, the 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.

The one area of brand-new controversy that could come before the court in the new term is the still-developing campaign to secure equal rights for transgender people.  Already pending at the court is the first test case on that question, involving a high school senior in Virginia who is a transgender boy who wants to use the boy’s restroom at school.   By a vote of 5-to-3, the court during the summer temporarily barred him from doing so, and it is a serious question whether the court will now be willing to step in and make a final decision on his claim of equal treatment at school.

Several cases have reached the court on redistricting of seats in the U.S. House of Representatives and in state legislatures, and those could be quite controversial.  The most difficult of those cases, not yet granted review, is whether the court can find a constitutional formula for judging whether a state legislature has gone too far in drawing up election maps that favor one political party over the other – the question of “partisan gerrymandering.”   So far, the court has not accepted various proposals on how to judge such partisanship, so its main task in reviewing redistricting maps has been focused on whether legislators made too much use of race in drawing up new boundaries.

The court has agreed to rule in the new term on issues surrounding the death penalty, but as of yet, it has not been willing to take on the ultimate question of the constitutionality of that penalty – an issue that Justice Stephen G. Breyer has been trying to get on the docket for review.  In the capital punishment cases already set down for decisions, the court will be dealing with the racial factor in such cases, and with the standard for judging whether a convicted criminal has too much of an intellectual disability to be given the ultimate sentence.

When the court assembles for its opening public session on Monday, it will be on the bench for only a brief time, to issue a new set of orders on pending cases and to hold ceremonies to admit lawyers to practice before it.  Hearings on cases will resume on Tuesday morning, and the term will then be in full swing.

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