High court at a crossroad at start of new term
The Washington Post
WASHINGTON — The Supreme Court’s new term begins Monday with the focus not on the court’s docket but on the court itself and a future that will be defined by the presidential election.
For the first time in decades, there will be only eight justices, not nine, to begin the new term. Also absent are the kind of big-ticket cases — involving immigration reform, affirmative action, abortion, same-sex marriage and the Affordable Care Act — that in recent years have catapulted the Supreme Court to the fore of American civic life.
Instead, the short-handed court has assembled a docket of more-modest cases — albeit ones that touch on contemporary controversies such as the role of race in criminal justice and politics, free speech and perhaps the treatment of transgender students.
Of far greater consequence is the fate of the court’s ideological balance. And on that question, the court finds itself like the rest of the country: waiting to see what happens Nov. 8.
It has been nearly a halfcentury since a presidential election promised such an immediate impact on the court. Senate Republicans have refused to take up President Barack Obama’s choice of Judge Merrick Garland for the seat of the late Justice Antonin Scalia, arguing that a newly elected president should fill that vacancy.
As of Sunday, Judge Garland has been waiting 200 days for the Senate to act on his nomination. Mr. Obama tapped JudgeGarland a month after Justice Scalia’s death in February. But Senate Majority Leader Mitch McConnell, R-Kentucky, has been adamant that the Senate will not even hold a hearing on Judge Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.
The next president’s impact on the court could go well beyond that one choice and be felt for decades. Three of the current justices are now older than other members who recently retired from the court, suggesting more departures to fill.
A victory by Donald Trump would continue the modern tradition of courts dominated by Republicanappointed members. But Hillary Clinton’s success could upend the status quo at the Marble Palace, producing nominees who would cement abortion rights, affirmative action and gay rights, and challenge hardwon conservative victories on gun rights, strict voting laws and campaign finance.
Any discussion of the Supreme Court these days, Stanford law professor Pamela S. Karlan said at a recent preview session at William & Mary Law School, can be summed up in two words: “It depends.”
If the procedural precedent for Republican resistance is thin, the political imperative is clear.
“I really don’t think there can be any doubt that if Chief Judge Garland is in fact the next justice on the Supreme Court, it is going to lead to a sea change in the direction of the court on many of the most consequential issues of the law,” said Kannon Shanmugam, a Washington lawyer and former Scalia clerk who regularly represents clients before the court.
Judge Garland’s fate depends not only on whether Ms. Clinton is elected but also which party comes to control the Senate. A Republican-majority Senate might finally welcome Judge Garland, perhaps even in a lame-duck session before the end of the year. Republican senators in the past praised Judge Garland as the most moderate nominee a Democratic president might offer.
But a Senate controlled by Democrats might want a more liberal nominee or a younger one, who would probably get to serve longer on the court than the 63year-old Garland. That would present Ms. Clinton with a tough choice as she put together a Cabinet and a legislative agenda.
“The political capital that a President Clinton would have to exert to nominate someone else, unless she has a filibuster-proof Senate, might not be worth it,” Ms. Karlan said.
Mr. Trump has promised that his nominee would come from a list of 21 possibilities — all but one are judges — that has drawn respect from the conservative legal establishment. But Democrats probably would not make it easy for him to fill an opening that occurred during a Democratic president’s term.
“Whatever the outcome of this, the damage to the court has been done,” said David Strauss, a law professor at the University of Chicago. “Because it’s hard to imagine the Democrats in the foreseeable future, should they be in the position Republicans are now, unilaterally disarming.”
The current divide on the court has led to more liberal outcomes than conservative ones. The four justices on the left need draw only one vote from the right to prevail, and Justice Anthony Kennedy has sided with them on several.
“A lot of the big things are actually ones on which the court already has a so-called liberal majority. Abortion and affirmative action, now that Justice Kennedy has voted that way, are two recent examples,” said Neal Katyal, who was acting solicitor general under Mr. Obama.
But it is clear that the court itself recognizes it is split. Three cases accepted before Justice Scalia died — disputes involving class actions, a government “taking” of private land and subsidies for a religious organization - have not yet been scheduled for oral argument, while others granted months later will be argued this week.
The court found itself deadlocked four times last term — including over the propriety of Mr. Obama’s ambitious order to shield some longtime undocumented immigrants from deportation. Other times, it reached agreement by avoiding fundamental questions.
The justices mostly have been silent about how the vacancy has affected their work. But Justice Sonia Sotomayor recently told a group of lawyers and judges in Colorado that it eventually will keep the court from doing its job.
“There are a few cases where you can see that we ruled very, very, very narrowly, and it doesn’t take a genius to figure out why,” she said. But she added the court’s job is to take on the most vexing questions, ones that have divided lower courts.
“If we do rule narrowly on every case we take,” Justice Sotomayor said, “the resolution of those important issues will continue to elude us and elude you.”
The court will begin oral arguments Tuesday, instead of the traditional first Monday in October, because of a Jewish holiday. Race in the justice system will be a prominent topic.
In one case, the court will consider Duane Buck’s assertion that his right to a fair hearing in Texas was compromised during the death penalty phase of his conviction for two murders in 1995. His lawyers put on the stand a state expert who said black men are more likely to present a risk of future violence.
And the court will again confront the role of race in politics. For the third straight term, the justices will consider whether state legislators improperly relied on race when drawing electoral districts. The current cases come from Virginia and North Carolina.
Later this month, the court will decide whether to accept the case involving Gavin Grimm, a transgender boy, who is barred from using the boys’ bathroom at Gloucester High School in Virginia. Lower courts have deferred to the Obama administration’s directive that schools must allow students to use the bathroom that corresponds with their gender identity.
But Gloucester County received a stay from complying with the ruling, which the Supreme Court granted until it decided whether to hear the case.
If accepted, said American Civil Liberties Union legal director Steven Shapiro, it would “immediately become the highest-profile case” on the court’s docket.