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Supreme Court Starts New Term in Shadow of Kavanaugh Uproar

High court begins term with 8 justices, a not-unfamiliar place for it

Senate Democrats and protesters gather outside of the Supreme Court to voice their opposition to the appointment of Brett Kavanaugh to the Supreme Court on Friday. (Sarah Silbiger/CQ Roll Call)
Senate Democrats and protesters gather outside of the Supreme Court to voice their opposition to the appointment of Brett Kavanaugh to the Supreme Court on Friday. (Sarah Silbiger/CQ Roll Call)

The Supreme Court started its new term Monday in the shadow of the dramatic confirmation showdown over nominee Brett Kavanaugh, a roiling political fight that leaves the high court shorthanded and equally divided on ideological grounds.

The slate of cases the justices set for oral arguments in October can’t compare to the interest in Kavanaugh, who is currently a federal appeals court judge. His nomination to the high court awaits action on the Senate floor this week, as soon as the FBI completes a supplemental background investigation of allegations he sexually assaulted women decades ago.

On the one hand, “Saturday Night Live” opened its season with a parody of last week’s Senate Judiciary Committee hearings featuring movie star Matt Damon as Kavanaugh. On the other, the Supreme Court heard an oral argument Monday on an Endangered Species Act case featuring the not so famous dusky gopher frog.

The other case up for oral argument Monday was about how age discrimination applies to small public employers.

A case about federal sex-offender registration that could reshape how much power Congress can delegate to federal agencies, Gundy v. United States, is set for oral argument Tuesday.

These are important cases, legal experts say, but not blockbusters that could trigger major shifts in the nation’s legal landscape. The court so far hasn’t put any big cases or politically heated disputes on its docket for this term, which ends at the end of June.

It is the first term in more than three decades without Justice Anthony M. Kennedy, the so-called swing vote who left the high court this summer.

The justices could steer clear of more controversial cases because of the political heat of Kavanaugh’s confirmation process, legal experts say, but also because they are ideologically split 4-4. A case where the justices deadlock means the lower court’s decision stands, as if the Supreme Court never heard the case at all.

This is not unfamiliar territory for the high court. When Justice Antonin Scalia died in February 2016, the Republican-controlled Senate refused to hold a hearing for the man whom then-President Barack Obama nominated to replace him, Merrick Garland. 

The seat stayed vacant until after the 2016 election and was not filled until the Senate confirmed Trump’s first nominee to the Supreme Court, Neil Gorsuch, in April 2017. 

In the interim, the court operated with eight justices and at times deadlocked. 

Now public and media attention is focused across the street on the Capitol, where the overheated arguments over the confirmation process show no signs of cooling down.

On Sunday, Republican Sen. Lindsey Graham of South Carolina, a member of the Judiciary Committee, called for an investigation into how Christine Blasey Ford’s allegation became public and how she hired her legal representation.

Ford sent a letter describing how Kavanaugh sexually attacked her in 1982 to her congresswoman, Anna G. Eshoo, and Sen. Dianne Feinstein, the Judiciary Committee’s top Democrat, but asked to be kept anonymous.

“Who betrayed Dr. Ford’s trust, who in Feinstein’s office recommended [Debra] Katz as a lawyer, why did Ms. Ford not know that the committee was willing to go to California?” Graham said on ABC’s “This Week.”

The Senate now is waiting until as late as Friday for the background investigation. President Donald Trump reversed course Sept. 28 and ordered it, amid reluctance from key Republican senators to hold a confirmation vote without a fuller vetting of allegations against Kavanaugh.

On Monday at the White House, Trump said the FBI should wrap up its new investigation of Kavanaugh “quickly,” saying the bureau needs to “do what it has to do” in probing sexual assault allegations against someone up for a lifetime appointment to the high court.

On Friday, the Senate moved forward on procedural steps to set up a final confirmation vote. Majority Leader Mitch McConnell has agreed not to hold a vote on one of those steps until the FBI report has been filed, said GOP Sen. Jeff Flake or Arizona, whose actions led to the reopening of the FBI background investigation.

Senate Democrats have already expressed concern that the FBI probe won’t be vigorous or follow all potential leads. On Sunday night, Feinstein sent a letter to White House Counsel Don McGahn and FBI Director Christopher Wray seeking the written directive for the supplemental background investigation.

“The White House and the FBI should release details on the scope of the Kavanaugh background investigation and keep Congress informed on any changes,” Feinstein tweeted. “This needs to be a real investigation and we must get all the facts.”

John T. Bennett contributed to this report.

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