The argument calendar for November, released last week [Sept. 1], omits three cases that had been accepted for review in mid-January. The court ordinarily schedules cases for arguments roughly in the order in which the justices granted certiorari. The three cases that did not show up on the November calendar were among five that had been postponed earlier. Two of those are on the October calendar, but the second postponements of the remaining three prompted SCOTUSblog’s Amy Howe to renew speculation about a deliberate decision to wait for confirmation of a tie-breaking ninth justice.
The court had four cases during the last term that ended in 4-4 votes that affirmed lower court decisions without settling the legal issues posed for future cases, the most since Justice Anthony M. Kennedy joined the court more than halfway through the 1987-88 term. The rulings left in place by the deadlocks included two victories for liberals and two for conservatives most notably, the 4-4 vote that blocked President Obama’s controversial immigration policy to shield parents of U.S. citizen children from possible deportation.
No one on either side of the cases, nor court watchers in general, was satisfied with the tie votes. As football coaches have remarked in a different context, “A tie is like kissing your sister.”
The prospect of tie votes remains as long as the seat left vacant by the death of Justice Antonin Scalia on Feb. 13 remains unfilled. President Obama’s nominee for the seat, veteran federal appeals court judge Merrick Garland, is still being denied a hearing by the Senate’s Republican leadership now almost six months after Obama announced his choice.
Senate Majority Leader Mitch McConnell has been unmoved by the criticism that the refusal to grant a hearing to a Supreme Court nominee is unprecedented in the modern era of confirmation hearings dating from the hearing for Louis Brandeis in 1916. But there has been speculation that Republicans might relent and give Garland a hearing if Democrat Hillary Clinton emerges as the winner in the November presidential election.
Senate Judiciary Committee Chairman Chuck Grassley brought new attention to that possibility last week [Aug. 29] when he told a town hall meeting in his home state of Iowa that he might agree to convene a hearing if favored by “a majority” of senators. “If we have the election, and there was a majority of the Senate changed their mind about doing it in the lame duck, as opposed to January 20,” Grassley said, according to a later-posted video of the event, “I don't feel that I could stand in the way of that. But I don't think I can promote that idea.”
The possibility of a lame-duck session confirmation reflects speculation that Republicans might fear that a president Clinton would drop Garland and pick instead a more liberal nominee. As Slate’s Mark Joseph Stern aptly remarked, that rumored tactic would put a lie to the Republicans’ insistence since February that they want the American people to have a voice in the eventual selection. Even with a lame-duck session confirmation, however, Garland would have missed the October and November calendars and quite likely the December calendar as well.
Meanwhile, the court has scheduled eight cases for argument in October, working around Columbus Day and two Jewish holidays, and now ten cases for argument in November. All of the cases on the November calendar were accepted for review in May or June, and the six days of arguments had two slots readily available for any of the cases granted in January.
The three deferred-action cases include two on recognizable hot-button issues. In Trinity Lutheran Church v. Pauley, a church in Columbia, Mo., is challenging the state’s decision on Establishment Clause grounds to prevent it from participating in a program to help non-profits improve playground surfaces with recycled tire scraps. In the second case, Murr v. Wisconsin, a Wisconsin family is testing the so-called “regulatory takings” doctrine by challenging a decision by state authorities that prevents them from selling or developing lakefront properties. The third of the postponed cases, Microsoft Corp. v. Baker, is more obscure, but raises a significant issue about appeals in class action cases.
The postponements put the lie to the Senate Republicans’ insistence that the court can get its work done quite well with eight instead of nine justices. The unfilled seat left important legal issues unresolved during the last term.
Besides the four 4-4 decisions, the justices also appeared to have been equally divided in a fifth case: the challenge by religious nonprofits to the Obamacare requirement to include contraceptives in health plans for employees or students. The court skirted the impasse in Zubik v. Burwell with an 8-0 decision to send all the consolidated cases back to federal appeals courts in hopes that the plaintiffs and the government could reach a compromise that eluded the justices.
Congress has been dysfunctional for much of the past two decades ever since Republicans gained majority control of the House of Representatives. But that is no excuse for the Senate Republicans’ decision to render the nation’s highest court partly dysfunctional as well.