Home » Advice & Consent 11: "What Did I Miss?" – SCOTUS wraps up the term

Advice & Consent 11: "What Did I Miss?" – SCOTUS wraps up the term

On this episode…  SCOTUS wraps up the term with a bang – do any of the rulings impact the Scalia vacancy?

Three big holdings end the SCOTUS term

Fisher v. University of Texas at Austin – UT affirmative action program upheld, resulting in a lot of #byefelicia’s for Ms. Fisher, one of the more maligned plaintiffs in the history of American jurisprudence. Fear not: #abbywiththebadgrades will likely be a fixture on the right-leaning speaker circuit for the next decade or two, despite no UT degree.

This one was a bit of a surprise since it was Justice Kennedy who came in and delivered the winning vote, an evolution that Adam will speak more about later. It appears the reports of affirmative action’s death were greatly exaggerated?

Washington Post


United States v. Texas – 4-4 Court affirms the lower court’s rejection of POTUS immigration executive orders. The right says “SEE!!!” and the left says “SEE!!!!” Executive authority questions get the punt by SCOTUS… had Justice Scalia been with us, perhaps executive actions like this would have been curtailed. On the other hand, would a seated Justice Garland have meant a victory for the President?

NBC News


Whole Woman’s Health v. Hellerstedt  – A Texas law imposing regulations that abortion clinics’ doctors have admitting privileges to local hospitals and that clinics meet the standards of “ambulatory surgical centers” struck down as an undue burden on women’s rights. Anti-choice leaders decry this as an anti-women’s health ruling (like, for real) and pro-choice leaders breathe a sigh of relief as this brazenly obvious tactic appears to be over.

Interesting note: The majority opinion, essentially Casey II: Electric Boogaloo, was written not by Casey author Justice Kennedy, but by Justice Breyer. Given seniority drafting rules when the Chief Justice is not in the majority, this presumably means Kennedy had the opportunity to write C2:EB but “gave” this one to Breyer.

And here is Linda Greenhouse’s take.


Bonus: Five Thirty-Eight reveals this type of (“liberal”) ruling is historically atypical of abortion cases before the Court.

Mic Drop


Just back from a long weekend riding and camping the 184.5 mile C&O National Historic Park towpath, the advocacy and protection of which was just one of the legacies of Justice William O. Douglas (along with the majority opinion in Griswold v. Connecticut and the “trees should have standing” dissent in Sierra Club v. Morton). I understand he was a dick to his clerks though, so minus 200 points there.


Adam: Justice Kennedy’s continued swing to the left has an interesting side-effect. Even as the 4-4 deadlock has shown that the Court is hamstrung, immigration is already doing to be as giant an issue as it could be with Trump on the ticket, and it’s going to be fought on substance, not executive power or judicial indecision.

However, if abortion, which has–for 40+ years–been a right protected by the Court despite legislative attack had lost protection based on a technicality like a 4-4 decision, they would have made the Court a giant issue for liberals and would have had major reverberations for Senate races, which, for now, seem more up in the air than the presidential race. So, Anthony Kennedy, by protecting women’s rights, you must also have protected Senator McConnell’s job as majority leader and buried Judge Garland’s nomination even further, at least until after the election.


ABA well-qualified?

#AllCourtsMatter: the 8 Justice bench is making what’s happening at lower courts even more noticed and, perhaps, appreciated, by court watchers and hopefully ordinary folks. Because especially when a Supreme Court is at less than full capacity there are real implications: 1) most cases don’t ever make it to the Supreme Court.* 2) The Supreme Court has been issuing 4-4 decisions which have no precedential value so the courts do not have a universal law of the land to follow which can certainly impact courts and peoples’ understanding of the law and create even more inconsistent and confusing decisions, 3) The Supreme Court has been unable to decide and letting some Circuit Court decisions stand – given them the final say, instead of the Supreme Court.

*The Supreme Court grants oral arguments for only 75-80 cases for more than 10,000 petitions submitted to the court annually.Circuit Courts receive more than 55,600 filings annually.District Courts receive more than 390,500 filings annually.

But what we’re being subjected to in the case of Chief Judge Roberts and the Republican’s just-say-no approach, has been foreshadowed and – I think trying to establish a new normal for doing nothing – on the lower court levels.

By the numbers: Today we saw one district court nominee confirmed, Robert Rossiter to the U.S. District Court for the District of Nebraska. He fills a seat that’s been vacant since 10/3/2014, and he was nominated 8 months later in 6/2015. Now more than a year later, he was confirmed. And this seat was designated a judicial emergency (definition of judicial emergency).

But this is only the 21st Article III judge confirmed since Republicans took over the majority in 2015. Compare that to other presidents in their last 2 years in office. We are less than half-way to the lowest number of judicial confirmations since President Eisenhower, who had 44 confirmations in his last 2 years.

A better – and probably more appalling – indicator of progress is the overall number of judicial vacancies. Since the start of 2015, the number of vacancies has increased from 43 to 83. Compare this to President George W. Bush when the number of vacancies decreased from 56 to 47.

So, by the numbers, when it comes to Article III judicial vacancies, as of 6/28, there are:

83 current vacancies

14 known future vacancies (more expected)

29 judicial emergencies

On June 6, Senator Warren’s office released a report on the systematic Republican obstruction on nominees. This helped really bring a spotlight to the issue which received significant press coverage, including this piece in the Washington Post and in Senator Warren’s speech at the ACS National Convention on June 9.

There has also been discussion about the diversity of the courts, which I think is also a way to help us think not just in numbers but in terms of quality and reflection of society. This piece from The Guardian details this, as does this CQ article. That said, professional diversity is an area that I think many observers of nominations have hoped to see more of – and certainly something that was a topic of conversation when Chief Judge Garland was nominated.

Dan A musing on policing, from the Emerald Triangle.