This week starts the new Supreme Court term and the beginning of a year that could go down in history as both one of the least and the most consequential ever for the Court.
It will be one of the least consequential because there are no blockbuster cases on the Court’s docket. Although many of the cases will have effects throughout the country, none of them rises to the level of cases the Supreme Court has heard in recent years about immigration, abortion, same-sex marriage, affirmative action, Obamacare, religion and other issues.
Sure, there’s a very important patent case involving two mammoth tech companies. Apple wants Samsung to pay the full value of its smartphones for infringing on Apple’s patents, while Samsung thinks it should pay just the value of the disputed components. Given the market reach of these two brands, this case involves a lot of money and could have ramifications for all of us who use their products.
There are also important cases involving race and voting districts, whether a church daycare can be carved out of otherwise publicly available funds for playground material, whether a state can use an out-of-date standard to evaluate whether a death row prisoner is so mentally incapacitated that he can’t be executed, and when a school can deny a child the right to have a service dog in class.
And, in a case the Court just agreed to review last week, the justices will determine whether the federal trademark office can refuse trademark protection to an Asian-American rock band that wanted to name itself The Slants. The government refused to register the name, saying that it was a racist term. Now the Supreme Court will determine whether doing so violates the band’s First Amendment rights. Lurking in the background of the case is the long-simmering dispute over the name of Washington’s NFL team, which had its trademark canceled for the same reasons.
But to be frank, for most non-law professors, the cases on tap are real snoozefests.
That said, for reasons separate from the actual cases before the Court, this year could be one of the most consequential in recent history. That’s because the Court starts its new session this week with a vacancy. Ever since Justice Antonin Scalia died in February, the high court has had only eight justices, rather than its usual nine. In March, President Obama nominated Judge Merrick Garland to the Court, but Senate Republicans have refused to act on the nomination. Judge Garland’s nomination has long passed the previous record for a nomination to languish, and there’s no end in sight.
Which means that, barring a miraculous change of heart from Senate Republicans, the next president is going to decide who the ninth Supreme Court justice is. If Hillary Clinton wins, she could continue the nomination of Judge Garland or she could nominate her own replacement. Either option would change the fabric of the Supreme Court by creating a five-justice liberal majority, something the Court hasn’t had in decades. If Donald Trump wins, he has said he would try to appoint someone in the Justice Scalia mold. There are conservatives who are concerned that Trump might disappoint in this regard and appoint an unknown, but chances are that as the standard-bearer of the Republican Party, he would appoint someone who was conservative, even if not as conservative as Justice Scalia was.
Given the stakes, it’s frankly shocking that the candidates have not been talking about the Supreme Court more on the campaign trail. It didn’t come up once during the first presidential debate last week, and it’s rare that anyone – the candidates or the media – seems to pay attention to this issue at all.
The stakes are so high here because a Supreme Court nomination lasts far longer than the president’s term. With Justice Anthony Kennedy as one of the current swing votes on the Court, we’re still feeling the effects of the Reagan presidency. The next president will be able to do the same to future generations with whoever he or she picks.
In fact, given the age of other justices on the Court, it’s very likely the next president will appoint at least two, if not more, new justices to the Court. Justices Ruth Bader Ginsburg (who is 83), Kennedy (80) and Stephen Breyer (78) are, by all accounts, doing fine in terms of mental and physical health, but they are at ages where that can’t be taken for granted going forward. With every passing year, the chances of one of them retiring or dying increases. The new president will have to fill the Scalia vacancy and very possibly another one created by one of these justices.
This would have monumental ramifications in many areas of the law, but in particular in the area of abortion. Right now, of the eight justices on the Court, there are five who support the right to abortion (Kennedy, Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan) and three who oppose it (John Roberts, Clarence Thomas and Samuel Alito).
Note that the three older justices listed above are all in the group that supports the right to abortion. Imagine if one of them leaves the Court during this next president’s term. If Clinton is in the White House, she would presumably appoint two justices who support abortion, giving the Court a 6-3 margin in favor of abortion rights. However, if Trump is president, he would presumably appoint two justices who are against abortion. That would give the court a 5-4 margin against abortion rights.
Over the past four decades, we’ve heard at various times that Roe v. Wade and abortion rights are at stake in various cases and political contests. A lot of that has been overblown rhetoric not matched by reality, as the Court has been relatively stable in supporting Roe (except for a short period of time in the late 1980s/early 1990s). However, to say that Roe v. Wade hangs in the balance at this point in time is not at all an exaggeration.
Which is why it’s mind-boggling that the candidates aren’t talking about the Supreme Court. Even though this current term’s cases are bound to be less consequential than in recent years, the possible shifts in the balance of power on the Court could be some of the most consequential in Court history.