Now that the long slog of the primary is all but over, and Hillary Clinton is the presumptive Democratic nominee, Americans must focus on what’s going to become incredibly apparent over the next month: the need for a President Clinton – and not a President Trump – to appoint new Supreme Court justices.
June is usually the end of the Supreme Court term, so barring the Court taking longer than usual with its remaining opinions, this month will see the Court finish its work, even though it remains short-staffed.
Yes, for those who forgot thanks to the Senate doing absolutely nothing about it, the Supreme Court still has only eight justices. Almost three months ago, President Obama nominated Merrick Garland to replace late Justice Antonin Scalia and then pretty much everyone — most notably, the Republican members of the United States Senate — quickly forgot about him. It seems GOP senators received the nomination memo, filed it next to “do something about rising sea levels,” and moved on to agonizing over whether to “endorse” or to take a bold stand and merely “support” Donald Trump.
As for Merrick Garland, he’s left giving high school graduation speeches about Harry Potter and waiting for his last name to be turned into a verb: After the Senate defeated Robert Bork’s nomination in 1987, “to bork” now means “to harshly criticize and interrogate a nominee for judicial office,” and I have no doubt “to garland” will one day mean “to completely ignore, as if one doesn’t exist.” (e.g., “Every other episode of The Brady Bunch revolved around Jan complaining about being garlanded.”)
Meanwhile, the Supreme Court chugs along, doing the best it can without a full slate of employees. Over the next few weeks, we’ll hear from the Court about some of the biggest issues in American politics: abortion, affirmative action and immigration.
The Court must decide whether a Texas law regulating abortion facilities and doctors goes too far in imposing a burden on women seeking reproductive health care. The two provisions of the law at issue – that clinics effectively become miniature hospitals (known as ambulatory surgical centers) and that doctors have admitting privileges at local hospitals – sound innocuous on their face, but are pernicious in their effect. If allowed to stand, these medically unnecessary laws would reduce the number of clinics in Texas, the second largest state both geographically and in terms of number of people, from over 40 before the laws were passed to less than ten. Women from all over the state would have to travel huge distances to reach a clinic, but women from the poorest parts of the state – the Rio Grande Valley and West Texas – would be affected the most.
When the Supreme Court heard argument on the case in March, all eyes were on Justice Kennedy, as usual. There’s no doubt the four liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) believe both provisions are unconstitutional. And it is very likely the three justices who are more conservative than Kennedy (John Roberts, Clarence Thomas and Samuel Alito) are fine with abortion being regulated out of existence in Texas. Where Kennedy lands on this is still a mystery.
However, with each passing day, it becomes increasingly likely Kennedy is going to side with the liberals. If Kennedy joins the conservatives, the Court splits four-four on the case, and the lower court — which largely allowed the regulations to take effect — will be affirmed, though with no nationwide precedent. This is still possible, but usually when the Court splits like this, it decides the case very quickly. After all, when the Court is split four-four, they don’t write an opinion, so there’s nothing else to do other than announce the outcome. It’s been more than three months since the case was argued, so a four-four outcome is looking unlikely.
That leaves two other possibilities. At argument, the justices hinted at possibly sending the case back to the lower court for procedural or fact-finding reasons. However, again, if they were doing this, they most likely would have done it already, like they quickly resolved the contraceptive coverage case. That leaves Kennedy joining the liberals to strike down part or all of Texas’ provisions. This could take many different forms, some more complicated than others, but my money at this point is on this outcome. In passing and implementing this law, Texas has gone too far, and Justice Kennedy is going to see that.
This case also comes out of Texas, but unlike the abortion case, it has only seven justices on it — Justice Kagan has recused herself because she worked on the case before joining the Supreme Court. It involves Abigail Fisher, a white woman who was denied admission to the University of Texas, challenging the school’s admissions program’s use of race as one factor among many in evaluating applicants. The Court has already ruled once in this case, in 2013, sending it back to the lower courts to more closely scrutinize the affirmative-action program the school used. The lower court did that, finding the program constitutional, so now the high court is once again deciding if the state can take race into account when admitting students to its flagship school.
With Justice Kagan out, Justice Kennedy once again sits in the middle. It’s likely the three remaining liberals approve of what the school is doing and that the three conservatives disapprove. Justice Kennedy has historically been very hostile to affirmative action, though not as skeptical as some of the other conservatives. He’s likely to find Texas’ program too discriminatory and strike the program down as unconstitutional.
There’s a wrinkle, though: It’s hard to see the Court, with only a four-justice majority, completely ending affirmative action (Fisher and her backers’ hope for this case). A four-justice majority is a binding decision, both in outcome and reasoning, but it’s a strange one. If only four justices agree on a point, then when the Court becomes fully staffed once again (someday!), four justices become a minority. A four-justice majority will understand this, and is likely to keep the decision very narrow, rather than writing a decision that will attempt to reshape the law for decades to come.
The last major case also comes out of Texas and is a challenge to President Obama’s executive order that would save millions of young people and parents of young people from being deported. Twenty-six states sued the president claiming that the order oversteps his basic constitutional authority to enforce the law, not make it.
The lower court in the case blocked the order from taking effect, finding that it was likely unconstitutional and that the Obama administration could not enforce it while the case plays out in court (still to come). At oral argument in April, the justices were bitterly divided on the issues. While some held out hope that the Court would find a way to avoid the issue on procedural matters so that it didn’t resolve such an important case four-four, the oral argument did not appear to go that way.
Once again, time may be an indication though that internally the justices are working on a resolution to avoid a tie. As with the abortion case, if they were split four-four, they most likely would have announced that already. Since they haven’t, it’s possible some alliance has been worked out to avoid a non-decision.
As these issues at the short-handed Supreme Court take center stage in the coming weeks, there is no way to avoid the obvious implication: whoever the next president is will wield enormous power in replacing not only Justice Scalia, but also any other justice who retires or passes away in the coming years. Life is unpredictable, so there are no certainties, but actuarial tables do not look favorably on Justices Ginsburg, Kennedy and Breyer (all of whom will be over 78 when the next president is swore in) remaining on the Court much longer.
For conservatives, right now it’s a matter of playing defense and trying to hold onto Justice Scalia’s seat with a Trump appointee from the list of extreme conservatives he has already released. For liberals, we haven’t had a left-of-center Supreme Court in over two generations. Electing Hillary Clinton and reshaping the Supreme Court with one or more liberal appointments could shift the institution in ways that many of us can’t even imagine. And preventing Trump from populating the Court with young Scalia clones is a rock-solid reason for any Bernie supporter to pledge allegiance to Clinton and to resist the urge to go third-party this fall.
The stakes this November couldn’t be higher.