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Advice & Consent 02: A shorthanded Supreme Court

On the second edition of Advice & Consent… the ragtag gang of the usual suspects tackles what it means for American jurisprudence and policy to have a shorthanded Supreme Court for an extended period of time, plus more on the reactions to Judge Garland’s nomination.

Since last time

An early review of Judge Garland’s cases

WaPo: The respectful disagreements of Judge Merrick Garland

In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.

NYT: Merrick Garland’s Path to Nomination Marked by Deference, With Limits

In his appeals court decisions, Judge Garland has often been sympathetic to prosecutors’ arguments, and he has taken a legal approach that tends to help labor unions. According to the blog OnLabor, Judge Garland upheld National Labor Relations Board findings that employers had committed unfair labor practices in 18 out of 22 majority opinions.

A shorthanded Supreme Court – what does that mean for US law and policy?

Tim: The biggest issue I see with an extended shorthanded Supreme Court is that our federal judiciary is incapable of resolving Circuit splits, and that’s one of the biggest roles SCOTUS holds. It has a secondary impact of failing to resolve appeals properly, leaving the lower court holdings as the final say. So, we have a SCOTUS that runs, but it’s hobbled. The Court has an odd number of Justices for a reason…

Adam: We have our first 4-4 decision.  It’s in a case involving a long-standing federal rule that banks can’t require spouses to guaranty a loan as a condition of writing the loan. Most federal courts have gone along with it, but not the Eighth Circuit, which covers a number of midwestern states.  Now, there is no uniformity.  Banks are barred in most states from doing this, but not in states covered by the Eighth Circuit.

Even more interesting, SCOTUS already seems to be shying away from its role.  Three cases this week in which the Court decided less than it seemed it might–a case involving whether a guy can use a hovercraft in Alaska National Parks (big deal in AK) (http://www.supremecourt.gov/opinions/15pdf/14-1209_kifl.pdf), a case about whether a class action claiming Tyson’s Food owed millions in unpaid overtime (http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/#more-240381), and a case asking whether stun guns are protected by the Second Amendment (http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf ).  Each of those cases decided a relatively small part of the case and left it to lower courts to figure out what to do.  So the hovercraft guy doesn’t know if he can power up his vehicle, people don’t know if they can carry stun guns around, and Tyson’s employees don’t know if they’re gonna be paid overtime even though the Court decided each of their cases.  That’s often a sign of a Court that’s unable to get make a real decision and just punts on the issue.  Leaves law unsettled.  Just reading tea leaves, but I suspect that’s what’s going on.

Also, It has agreed to hear just one new case since Scalia died.  I checked the three previous years and in that same time period (taking leap year into account), the Court agreed to hear 5 cases last year, 7 the year before, and 11 the year before that).  Could be coincidence; the one case they agreed to hear was a big one, Samsung v. Apple regarding patent infringement.  But if justices are purposely rejecting cases because they are unsure of how a 4-4 court will deal with them, it’s skewing our law already.  Example:  The Court has turned down a bunch of appeals by state officials where lower federal courts have thrown out state-court convictions (habeas cases).  Surely, this must upset law-and-order conservatives.

Lena: Interesting to hear the Justices say that they can function just fine with 8. The integrity and independence of the Court is crucial, and I think the Justices are trying to publicly display confidence in their institution.

  • Justice Alito:
    • “We will deal with it,” Alito told an audience at Georgetown Law, pointing out that there is nothing in the Constitution that specifies the size of the court.
    • “We will see what develops,” he said.
    • Source: CNN
  • Justice Breyer:
    • “we’ll do our work,” Breyer said during an interview (by NBC News correspondent Pete Williams as part of a forum for Supreme Court fellows). “For the most part, it will not change.”
    • While some experts have predicted that the court will be stymied by being divided 4-4 in key cases, Breyer downplayed that possibility.
    • “The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent,” observed Breyer, an appointee of President Bill Clinton.
    • Source: Politico
  • 10 days before Justice Scalia died, Chief Justice Roberts (talking about confirmation process):
    • “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”
    • “We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”
    • Source: NYT

The Chatter

FiveThirtyEight: Republicans Could Do A Lot Worse Than Merrick Garland Under President Clinton — Or President Trump

New Republic: Report: Republicans told Obama they’d confirm Merrick Garland if the Democrats win the presidential election.

NPR’s Morning Edition: Nina Totenberg interviews POTUS on the nomination.

WaPo: The respectful disagreements of Judge Merrick Garland

Vox: Is Merrick Garland more conservative than Antonin Scalia on criminal justice issues?

New Yorker: Court Politics

Slate: Ideological Imbalance – Why Democrats usually pick moderate-liberal justices and Republicans usually pick conservative ones.

Mic Drop

Dan: A double deuce of a mic drop!

1 –  Mr. Johnson from Wisconsin

2 – My mic drop every week is almost definitely going to be something from the great Dahlia Lithwick’s Facebook feed.  (say who Dahlia is in 1 sentence).  This week: Merrick Garland, always winning.  Apparently the Chicago Tribune has no editor, because somehow they published a fairly long reflection about the trials and tribulations about middle school friendship… except it’s just the author’s story about how he rode the bus with Merrick Garland.  He asked the young Merrick what grades he got.  Merrick told him he got As.  Young Merrick did not ask the young Eisenhammer what he got.  Then, next thing you know it, Young Merrick and Young Eisenhammer face off against one another in an epic showdown, as Current Eisenhammer puts it:  

Then came the relay race that likely ended my budding closeness with Merrick. I’ve not thought back about that day until now — with Merrick being under consideration for the U.S. Supreme Court.

Eisenhammer goes into great detail about how he was making up ground on Garland and about to overtake him to win the race, when Young Garland allegedly cut to the left in front of Young Eisenhammer, causing YOung Eisenhammer to stumble and thus lose the race.  Why is this important?  Only to show the ridiculous things that will get published during the course of a Supreme Court nomination.  Here are Eisenhammer’s final, profound conclusions:

Still, with Merrick’s name in the spotlight, I wonder about a few things: Did Merrick Garland get away with something during that relay race? Was it intentional? Or does he just know how to win?

Fifty years later, it hardly matters.

But that relay race taught me a lesson about Merrick Garland — and one that I witnessed during that earlier bus ride.

Cross his path, and you’ll come out second best.

Read this at the Chicago Tribune

Adam:  More on precedents.  Due to a variety of circumstances, including times when either the GOP or the Democrats were strong majority parties in Congress, the last time a Republican Senate dealt with a Democratic president’s nominees was in when presidents had names like Grover Cleveland and Supreme Court justices had names like Lucius Quintus Cincinnatus Lamar II.  That may explain their novel strategy so far.  But if you think that’s strange, trivia questions for you:  When was the last time a Democrat appointed a Chief Justice?  Which president and who was the nominee?

Lena: So I’m likely to bore someone with conversation about the structure of our gov’t and our Constitution. One idea that I’ve been thinking about is one that Tim Burns, an attorney in private practice in Madison (and an ACS Board Member) published on Saturday:

Republican-appointed justices hold key to ending constitutional crisis: The four Republican-appointed Supreme Court justices can check the Republican Senate from unconstitutionally waiting for the next Republican president to replace Justice Antonin Scalia. Any one of those justices can do so by sending to the president a letter saying he will resign at the end of the current Supreme Court session unless the Senate fulfills its constitutional obligation of advice and consent. Faced with such a letter designed to thwart their efforts to politicize the court, the Republican Senate likely will see the wisdom of fulfilling its duty and allowing Obama to fill the vacancy. Such a letter is fully consonant with each Supreme Court justice’s oath to defend the Constitution.

Tim: Less shorthanded Supreme Court, more pop culture bleed into the process! After the nomination announcement, Twitter blew up a little bit when smart people rearranged the letters of “Merrick Garland” and realized it spelled “Kendrick Lamar.” The Internets exploded and the conspiracy was revealed.