by Masood Farivar
With Supreme Court nominee Brett Kavanaugh’s confirmation hanging in the balance, the high court is scheduled to open its new term on Monday with oral arguments on a range of issues before eight ideologically divided justices.
This is not the first time the high court has had a vacancy at the start of a new term. In 2016, the court faced a similar situation after Justice Antonin Scalia died earlier in the year and Republicans in the Senate refused to hold confirmation hearings for President Barack Obama’s nominee, keeping the seat vacant for nearly a year.
If Kavanaugh wins confirmation, he is expected to provide a critical conservative vote that could tip the court’s balance on key issues this year and beyond. Legal experts say the justices may reschedule for re-argument some of the cases that have been set to be heard early in the term.
The high court usually accepts less than 100 of the more than 7,000 cases it’s asked to review every year. So far this term, it has taken 44 cases with about half of them set for argument during October and November.
Big cases coming
Duke University law professor Brandon Garrett says the court has thus far shied away from accepting politically divisive cases in part because of the uncertainty over the Kavanaugh confirmation hearings.
“And I think it’s a sensible thing to do to be a little bit more cautious about accepting cert when it’s a transition year for the Supreme Court,” Garrett said, referring to a petition for a federal or state court decision to be reviewed.
Last term, the court issued rulings on major issues, including executive power in Trump v. Hawaii, digital privacy in Carpenter v. United States, and religious freedom in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.
Justice Anthony Kennedy’s announcement in June that he was stepping down set off a bitter political battle over replacing the high court’s swing vote on major issues.
Senate Republicans had pledged to confirm Kavanaugh ahead of the Supreme Court’s new term. But that prospect was thrown into doubt after the Republicans agreed late on Friday to a delay of up to one week in a full Senate vote.
Kennedy cast the deciding fifth vote in landmark decisions such as a 2015 Supreme Court ruling that legalized same sex marriage.
Solicitor General Noel Francisco called Kennedy a “great defender of First Amendment Freedoms” and said “it will be interesting to see how the Supreme Court “changes in many, many other significant ways now that we don’t have Kennedy on the court.”
Francisco, who argues cases before the Supreme Court on behalf of the government, said at the Federalist Society Monday that while the court had “one of the most consequential terms in recent history” last year, there are “several big cases in the pipeline” that could make it before the court before the end of the new term.
One of the early themes of the court’s new term, he said, is the court’s “willingness to reconsider precedent in some important areas of law.”
What’s on the docket
Of the cases currently on the docket, there are three where the court will revisit past decisions:
· Knick v. Township of Scott. The case, scheduled for next Wednesday, was brought by a property owner in Pennsylvania challenging the town’s ordinance requiring her to allow the public to visit an old cemetery located on her farm. The justices will decide whether to overturn a 1985 ruling that property owners challenging municipal laws must first sue in state courts rather than federal courts.
· Gamble v. United States. Justices will decide whether to overrule the “dual sovereignty” exception to the double jeopardy clause of the U.S. Constitution’s Fifth Amendment. An Alabama man convicted of firearms violations in both state and federal courts is challenging the doctrine. If the court rules in his favor, it will mean federal and state prosecutors will not be able to try a defendant for the same offense.
· Franchise Tax Board of California v. Hyatt. The case involves the so-called “sovereign immunity” of states. The justices will decide whether to overturn a 1979 ruling that held that states don’t have “sovereign immunity” in the courts of other states. Forty-five states have filed a brief in support of California’s petition to overturn the ruling. A ruling in favor of California will mean states will be immune from faces charges in sister states’ courts.
Paul Clement, a former solicitor general, said the cases present the justices with the question of whether to overturn past rulings or uphold them on the basis of principle known as stare decisis.
“So you really have three cases pretty much right off the bat for a new justice to decide whether or not to overturn law that has Supreme Court precedential effect,” Clement said at the Heritage Foundation in Washington last week.
Historically, justices on both sides of the ideological divide have been willing to reconsider precedent, according Garrett.
“I think, in general, the justices all feel bound, as they should and as they say, to adhere to precedent unless there is a serious problem with precedent,” Garrett said.
“But you certainly see justices that far more willing on the conservative side to overturn precedent recognizing civil rights and then you have justices on the more liberal end of the spectrum, to overturn precedent to further protect civil rights,” he said.
In addition to the cases the court has so far agreed to review, other big cases in the pipeline that are likely to be taken up before the end of the court’s term include legal challenges to partisan gerrymandering and President Donald Trump’s rescission of DACA, the federal program that protects young illegal immigrants from deportation.
“Looking further out on the horizon, the lower courts have issued a number of decisions on significant issues that are percolating through the courts of appeals and very well could end up before the Supreme Court by the end of this term,” Francisco said.