Post Scalia, justices show signs of accord
WASHINGTON — Two months, 31 arguments and 18 decisions since the death of Justice Antonin Scalia, is the Supreme Court hopelessly deadlocked or coping as a party of eight?
The answer varies with the issue, but arguments last week in the corruption case of former Virginia Gov. Bob McDonnell show there are high-profile cases on which justices from the left and the right agree more often than they don’t.
There also is some indication, hazy though it may be, that the court is trying to avoid division in an era of stark political partisanship and during a rollicking presidential campaign.
“The court prides itself appropriately as being an institution that works,” said Washington lawyer Andy Pincus, who argues regularly at the Supreme Court.
If the court can demonstrate an ability to get its work done, that could reinforce Republican opposition to confirming federal Judge Merrick Garland, President Ba rack O ba ma’ s nominee to replace Scalia, who died in February.
At the same time, the court has split 4-4 in two cases and part of a third, and the justices could end up similarly divided over immigration, birth control and a couple of other issues. Scalia’s death has deprived the court’s conservatives of a fifth, majority-making vote on some high-profile issues.
In McDonnell’s appeal of his corruption convictions, however, liberal and conservative justices seemed to share a deep skepticism of the government’s case. They strongly suggested that the court eventually will set aside his criminal conviction.
Liberal Justice Stephen Breyer, conservative Chief Justice John Roberts andthe justice between them on the ideological spectrum, Anthony Kennedy, all sharply questioned the government’s case against McDonnell.
The onetime rising Republican star was convicted of accepting, along with his wife, Maureen, more than $165,000 in gifts and loans from a wealthy businessman in exchange for pro- moting a dietary supplement.
Breyer said he worried about putting too much power in the hands of a criminal prosecutor, “who is virtually uncontrollable.” Roberts said perhaps the court should strike at the root of the problem and declare unconstitutional a key federal bribery law.
In some ways, the justices could be trying on roles as they adjust to life without Scalia. There are fewer big cases in the pipeline for next term, almost certainly a product of the court’s desire to avoid controversial topics until the bench is once again full.
The eight-justice court probably will be around for a while — at least through the presidential election in November and possibly some months beyond that.