Supreme Court experiences unusual start to new term
MARK SHERMAN and JESSICA GRESKO | 11/7/2016, 8:58 a.m.
WASHINGTON (AP) – The Supreme Court opened an unusual term on Monday with a depleted bench, just five of its nine seats filled.
The court has been down a justice since the death of Justice Antonin Scalia in February, and with political gridlock over how to replace him, the court’s future awaits the results of the Nov. 8 presidential election.
Monday was the first time in 25 years the court has been at less than full strength at the start of a term, which occurs on the first Monday in October as prescribed by federal law.
The court’s three Jewish justices – Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – also were absent on the court’s opening day, which coincided with the Jewish holiday of Rosh Hashanah. Because of the holiday, the court diverged from its usual practice of hearing cases then.
The opening session lasted only about five minutes and consisted largely of admitting new attorneys to the Supreme Court bar. Also Monday, the court rejected hundreds of appeals that accumulated over its long summer recess.
When arguments begin on Tuesday, it will mark the start of a cautious calendar, one without blockbuster cases such as those of recent years dealing with health care, gay marriage and abortion rights.
Neal Katyal, the former Acting Solicitor General of the United States who is now in private practice and is scheduled to argue several cases this term, said the court is simply “not taking as many big-ticket cases.”
“I think they’re tending to avoid cases in which they would be deadlocked 4-4,” he said, describing that outcome as frustrating for everyone involved.
Tie votes leave the lower court decision in place, but set no national legal rule and essentially waste the justices’ time.
So far, the approximately three dozen cases the justices have agreed to hear include two redistricting cases involving the rights of minority voters and two appeals from death row inmates in Texas. The justices accepted eight new cases last week, including a dispute over whether disparaging names can receive trademark protection from the government.
The term’s cases also include a church’s challenge to its exclusion from a Missouri state program to provide rubberized surfaces in playgrounds. The Missouri case about the separation of church and state was granted while Scalia was still alive and has yet to be scheduled for argument, possibly because the justices think they may divide 4-4.
The justices will have to wait for the presidential election on Nov. 8 to have a sense of who might join them as the ninth justice. President Barack Obama has nominated Judge Merrick Garland, but Senate Republicans have refused to act, saying the next president should fill the Scalia seat.
The rights of transgender people, immigration, climate change, voter identification and religious freedom are among other cases the court might consider later in the term. These are the sorts of issues that have split the court along ideological lines before.
The other big, looming issue is when one or more of the older justices might retire. Ruth Bader Ginsburg is 83 and has said she will take it a year at a time. She could find herself in a newly powerful role if Democrat Hillary Clinton is elected, making her less likely to step down, said Thomas Goldstein, an attorney who argues regularly at the court.
The two other older justices are Stephen Breyer, 78, and Anthony Kennedy, who turned 80 this summer. He might see his influence diminish on a more liberal court.