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Supreme Court expected to forge ahead with eight justices after Ginsburg’s death

Justices could choose to punt on big decisions, or re-hear cases when the 9th justice is confirmed

A woman waves a Notorious R.B.G. flag as crowds gather at the U.S. Supreme Court on Sept. 21, 2020, to mourn the death of Supreme Court Justice Ruth Bader Ginsburg.
A woman waves a Notorious R.B.G. flag as crowds gather at the U.S. Supreme Court on Sept. 21, 2020, to mourn the death of Supreme Court Justice Ruth Bader Ginsburg. (Bill Clark/CQ Roll Call)

A shorthanded Supreme Court can move forward as usual with the slate of oral arguments already set for the first few months of its new term that starts in October, but having only eight members changes how they might be decided.

Among the potentially affected cases: the fate of the 2010 health care law known as Obamacare, set for argument Nov. 10, and the House Judiciary Committee’s push to see grand jury materials in former special counsel Robert S. Mueller III’s investigation into interference in the 2016 presidential election, set for argument Dec. 2.

President Donald Trump plans to announce later this week his pick to replace Justice Ruth Bader Ginsburg, who died Friday. But it’s unclear how quickly the Senate will act on the nominee.

Senate Majority Leader Mitch McConnell vowed on Monday that there would be a Senate vote on Trump’s nominee but did not say whether the vote would occur before or after the election.

The eight-member court is still expected to hear this term’s oral arguments and decide the cases as usual, and issue rulings if there is a majority. But not having the typical nine justices can mean the court ends up equally divided, 4-4, and unable to decide the case.

The justices have several options for what to do with the case at that point. Any of the moves could take several months, and the only thing for sure is that the justices would have to do something by the end of the term at the end of June.

First, they could issue a 4-4 decision, which is really not a decision at all but affirms the lower court’s ruling. Such a deadlock would be as if the Supreme Court never heard the case.

That happened in a major case about President Barack Obama’s immigration executive actions in June 2016, when the court was shorthanded at the end of its term after the death of Justice Antonin Scalia. The 4-4 result left in place lower court rulings that halted an Obama program that would have allowed undocumented immigrant parents of U.S. citizens and legal residents to stay in the country and get work authorization and other government benefits.

This time, a 4-4 tie in the health care case would leave in place a lower court decision that the law was unconstitutional after Republicans effectively ended the “individual mandate” in the 2017 tax overhaul by zeroing out the penalty for most Americans without insurance coverage.

A coalition of Republican state attorneys general, led by Texas’ Ken Paxton, sued in 2018, and the Trump administration called on the Supreme Court to strike down the full law. The justices agreed in March to hear the case.

The do-over options

Second, the court has the option to wait on a decision and set a case for a re-argument once another justice is confirmed.

A similar situation happened in the past two terms with a case about tribal rights. In June 2019, a seemingly deadlocked court — at eight members, as Justice Neil M. Gorsuch did not participate because of a conflict — set a case for re-argument in the next term.

The court ultimately decided the issue in May on a different case where Gorsuch could participate. Gorsuch ended up writing the decision for a 5-4 court.

And third, the justices could issue a narrow opinion on an aspect of the case where they can get a majority that doesn’t decide the larger questions in the case and sends the rest of the case back to the lower court for further proceedings. Such a case could then return to the Supreme Court at a later time.

Emergency action

The justices might not have such an option in emergency applications to the court, such as those that might happen in a contested presidential election. But a tie is unlikely if the court splits along typical ideological lines, election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote on his blog.

“The current Supreme Court is divided 5-3 along conservative-liberal lines, with conservative Justices taking a narrow view of voting rights (even during the pandemic) and liberals taking a broader view,” Hasen wrote.

If Chief Justice John G. Roberts Jr. sided with the liberal wing, then it could be a 4-4 tie, and the court would be pressed to reach compromises as it did after Scalia’s death, Hasen wrote.

“Even if the Justices could not compromise, a 4-4 split leaves a lower court decision in place, and so it is not as though we would fail to have a tie-breaker,” Hasen wrote. “And Congress is the ultimate judge of election winners as it decides controversies over electoral college votes.”

Still, the shorthanded court leaves the conservative wing with more of an advantage on such emergency applications, Josh Blackman, a professor at the South Texas College of Law in Houston, wrote on The Volokh Conspiracy blog.

“The Roberts Five will still be able to stay a liberal lower court ruling. But the Ginsburg Four + Roberts will no longer able to stay a conservative lower court ruling,” Blackman wrote. “Roberts would have to persuade another Justice, probably Kavanaugh, to cross over. A four-four tie will leave the lower-court ruling in place.”

Being shorthanded is not unfamiliar territory for the high court in recent years. When Scalia died in February 2016, the Republican-controlled Senate refused to hold a hearing for the man whom Obama nominated to replace him, Merrick Garland.

The seat stayed vacant until after the 2016 election and was not filled until the Senate confirmed Gorsuch, Trump’s first nominee to the Supreme Court, in April 2017. In the interim, the court operated with eight justices and at times deadlocked.

The Supreme Court also started its term in October 2018 shorthanded after the retirement of Justice Anthony M. Kennedy amid the heated confirmation battle over Justice Brett M. Kavanaugh, who was confirmed five days later.

Senate vote

If the Senate takes a confirmation vote before Election Day, it would be among the quickest in recent memory.

McConnell in floor remarks Monday reasoned that there is “more than sufficient time” for a new justice to be confirmed, pointing to the 104 days left in the 116th Congress.

A 2018 Congressional Research Service report said the average number of days from nomination to final Senate vote for Supreme Court nominees was 69.6 days, or approximately 2.3 months. The report was released amid the contentious Kavanaugh confirmation proceedings, which took 88 days from nomination to confirmation.

The report found that of the eight other members of the court at the time, Ginsburg had the shortest nomination to confirmation time of 42 days, while Clarence Thomas’ 99-day wait was the longest.

Chris Cioffi contributed to this report.

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