Democrats: Supreme Court Vacancy Hurts Small Business

Second report from Senate Democrats highlights risks of split decisions

Judge Merrick Garland's nomination to the Supreme Court has been blocked by Senate Republicans. (Al Drago/CQ Roll Call)
Judge Merrick Garland's nomination to the Supreme Court has been blocked by Senate Republicans. (Al Drago/CQ Roll Call)
Posted May 24, 2016 at 10:40am

Senate Democrats are continuing to make their case for filling the Supreme Court vacancy, arguing that a deadlocked court could harm small businesses given the uncertainty on everything from patent infringement to overtime pay.

The Democrats’ policy and communications arm is releasing a report Tuesday detailing how a vacancy on the high court creates uncertainty across the country. The report is the second in a series, the first of which focused on how a vacancy affects the criminal justice system.

“When a deadlock occurs, important national issues remain undecided until the Court is able to rehear the case or another case raising the same issue comes before it,” write the authors of the report. “That uncertainty is harmful for all Americans — and especially for small businesses, which need certainty and predictability to operate.”


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The National Federation of Independent Business pushed back, saying the appointment President Barack Obama’s Supreme Court nominee, Judge Merrick Garland of the D.C. Circuit Court of Appeals, would be even worse for small businesses. The group provided an assessment Garland’s record , suggesting that 90 percent of his decisions went against businesses  and 77 percent were in support of federal agencies.

Democrats have been pushing for the Senate to consider Garland, whom Obama nominated Garland in March following Justice Antonin Scalia’s death in February. But Republicans have vowed not to consider the nomination while in the midst of a presidential election, arguing that the American people should decide the direction of the court through the election.

Part of the Democrats’ case for Garland involves the argument that the judicial branch is harmed by an eight-justice court, with the risk of deadlocked decisions given that four justices were appointed by Republican presidents and four by Democrats.

In their small business report, Senate Democrats offered the example of a case about whether borrowers can require their spouses to guarantee loans. On March 22, the Supreme Court was evenly split on the case, the first deadlocked decision since Scalia’s death, sending it back to the lower court. 


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In addition to the loan case, Democrats pointed to a a handful of other pending cases relating to small business issues, arguing that a lack of direction from the high court fosters uncertainty. Those cases related to standards for finding infringement of patents and awarding damages, and standards relating to federal overtime pay.

“Throughout my career in public service … the most consistent message I hear from Delaware businesses is that they need stability and predictability in order to succeed and grow,” said Delaware Sen. Chris Coons, a member of the Judiciary and Small Business and Entrepreneurship Committees.

“This report shows clearly that Senate Republicans’ refusal to fill the Supreme Court vacancy is already causing problems for American businesses and denying them exactly what they need — stability and predictability — from the federal government.”

Republicans have argued that the court is not damaged by the vacancy, noting that the court is still working. According to the Associated Press, Supreme Court Justice Stephen Breyer, who was appointed by Democratic President Bill Clinton, made the same argument at an event Monday night, saying that the court may only deadlock on four or five cases of the dozens the court will consider this term.

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