Supreme Court Preview (Part One): Eight is Not Enough

Time for the annual Supreme Court preview.  When we last left the eight, they had punted several significant cases on a 4-4 tie or with very narrow decisions that avoided the main issue in the case.  They had also only granted review on twenty-nine cases for the fall.   The delay in filling the vacancy was clearly causing problems.

Summer at the Supreme Court tends to be quiet.  Most of the summer work is internal.  Parties file the briefs for the fall cases and petitions for review on new cases and responses to those petitions.  The justices and law clerks spend most of their time reading these materials with the clerks writing memorandums summarizing the petitions for the justices and discussing the cases to be heard in the fall with their own justice.  The big actions during the summer are decisions on stay applications and the release of the argument schedule for the fall.

On stays, the law has long recognized a distinction — dating back to pre-Tudor England when they were separate courts — between “law” and “equity.”  Simplified, a case “at law” involves a request for a money judgment.  For the most part, such judgments are not paid until the case is finally over (i.e. all appeals are done).  Stay applications are rare in cases at law.  A case “at equity” normally involves a court order commanding a party to take action or commanding the party to cease taking an action.  Cases at equity typically involve the validity of a law or policy.  Such cases routinely lead to stay applications as both sides have their preferred rule that they want to be in place until there is a final decision on the proper rule.   During an election year, a significant number of stay applications involve changes to state election law or election procedures.

At the Supreme Court, while it only takes four votes to ultimately grant review on a case, it takes a majority (five votes) to grant a stay.  On non-election cases, justices will typically give a “courtesy” fifth vote to grant a stay if four justices indicate that they want to grant a stay to take a closer look at granting review.   When the Supreme Court granted a stay in the transgender bathroom case (to prevent the decision from taking effect for the fall semester), there was such a courtesy fifth vote.  On election cases, this summer, there has been no such courtesy fifth vote.  As such, all of the decisions by the lower courts — both liberal decisions protecting voters and conservative decisions making it harder to vote — have gone into effect for the November elections.  Some of these cases may end up at the Supreme Court on the merits in the spring, but the lower courts are now in complete control of the November election.  (This summer practice might change if you have a last second decision by a lower court.  The Supreme Court has traditionally not liked last second changes in election procedures.  But with a 4-4 split, it might not).  For the most part, the absence of Justice Scalia has been good for Democrats as most of the lawyer court decisions have struck down laws designed to suppress minority votes.  The absence of a replacement might not have been significant because the handful of laws upheld by the lower courts were not particularly restrictive (i.e. states that used to have very pro-voting laws now are closer to the middle of the pack).  So far, no stay of a restrictive law has failed on a 4-4 vote.

The other place where the absence of a ninth justice is potentially being felt is in the argument calendar.  While not absolute, cases tend to be scheduled for argument in the order in which the Supreme Court granted review.  (This tendency is even truer in the spring when the briefing schedule limits which cases are available for argument.)  In terms of the number of cases for argument, the Supreme Court granted review of five cases in January, two cases in March, three cases in April, three cases in May, and sixteen cases in June.  With three argument days in October (due to Rosh Hashanah, Columbus Day, and Yom Kippur falling on what would be argument days), six argument days in November, and six argument days in December, the expectation would be that the October argument days would feature the January cases and maybe one of the March cases, that November would feature the remaining March cases, the April cases, the May cases, and some of the June cases, with the remaining June cases being heard in December.  However, when the Supreme Court released the October and November argument calendars, this expectation turned out to be incorrect.

The big departure from expectations involve three of the five cases from January (a takings case, a free exercise case, and a class action case).  While I will have more details on these cases in a later post, the key fact is that — in all three cases — the conservative side of the issue is the petitioner.  While it only takes four votes to grant review, there is a tendency to wait for the case that presents the issue in the light most likely to get five votes for a justice’s preferred outcome when the Supreme Court decides the case on the merits.  (After all, why would a justice vote to take a case if he thought that taking the case would lead to a bad decision.)  These three cases were basically the last cases that the Supreme Court took before Justice Scalia’s death.  With Justice Scalia, it was more likely than not that all three cases would have ended in a 5-4 decision (most likely in favor of the conservatives).  Without Justice Scalia, a 4-4 split seems very likely unless the vacancy is filled soon.  Clearly, by delaying these cases until December, the Supreme Court was hoping that something would happen in September (or maybe November) to fill the vacancy before the cases are heard.

Other than the delay on the three January cases, the October docket looks mostly like one would expect (other than having eight cases on three days).  With the three cases postponed, the rest of the docket did include all three April grants and one June grant (a case that seems likely to be decided by consensus on a procedural issue without reaching the merits).  Likewise, given the postponement of the three January cases the November docket also looks mostly like what would be expected (ten cases on sixteen days).  Lastly, looking at the cases still available for the December docket, besides the three January cases), the remaining eight cases are all June grants with five having been granted during the last week.  Two of the early June grants (an election case and a complicated death penalty issue) that arguably should have been on the November docket might also reflect a likely 4-4- split.

As I have noted in earlier posts, there was a chance that there might be some movement in the Senate on the vacancy after Senate primaries ended.  Recent polling seems to make that possibility less likely.  Whether or not anything happens in the lame duck session in November depends upon the outcome of the election and how the key players (President Obama, Senator McConnell, and Senator Grassley) view the meaning of those results.   With control of the Supreme Court in the balance, it is important that Secretary Clinton win the White House.  It is also important that Republican Senators be punished for their unprecedented refusal to consider a Supreme Court nominee.

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