The day after the election, the justices will take the bench in what will be, either way, a very different America. Perhaps fittingly, they will hear a case about a statute that withholds citizenship from some foreign-born children of citizens, not on the basis of religion or “ideology” but on whether their mothers are married at the time of their birth.
Harsh discrimination in immigration law may be a foretaste of things to come. Or it may not.
Or to put it differently, who the hell knows?
The Court is operating at a reduced level while waiting for a ninth justice who will determine whether the conservative or liberal wing will have a majority. Call it Schrodinger’s Court. Like the cat in the box who is both alive and dead, the Court finds itself in a state of quantum superposition, a possible far-right Court shimmering simultaneously beside and within an equally ectoplasmic liberal one.
Senate Republicans have made it clear there won’t be a ninth justice until they know whether their party will hold the White House. President Obama has nominated Merrick Garland, a moderate centrist respected by everybody (except perhaps Wayne LaPierre), to replace the late Antonin Scalia; Democratic nominee Hillary Clinton has urged the Senate to confirm Garland before the election, but remained coy about what she will do if they do not and she wins in November. Donald Trump, meanwhile, has released a list of highly conservative potential nominees for the Garland vacancy if he wins. The Republican party has Donald Trump’s word on that.
So here are the possibilities—a Clinton victory followed (as Senate Judiciary Chair Charles Grassley has begun to hint)—by a quick-march confirmation of Garland during the lame-duck session to snatch the vacancy from a hated Democratic president-elect; a Clinton victory with no lame-duck Garland confirmation followed by a decision by Clinton to re-nominate Garland; the same scenario ending with a Clinton decision to nominate someone else; a Trump victory followed by the appointment of a hard-right jurist from the list; and a Trump victory followed by the impulsive appointment of Greta van Susteren or Victor von Doom.
And that only takes us through January. Between now and 2020, the forking paths in the Court’s garden proliferate to infinity as members of the geriatric wing of the court resign or unwillingly depart.
In the meantime, the actual Court bumps along the pavement like a child’s balloon after a long day at the fair. To appreciate its reduced state, look at the order on Friday slotting cases for argument in November. The worthy cases include disputes over the “exhaustion” requirement of the Handicapped Children’s Protection Act of 1986, the “under-seal” requirement of the False Claims Act, the number of officials covered by the Federal Vacancies Reform Act, and the six-year limitations provision of the Patent Act. November’s sitting will follow an October docket dominated by criminal justice cases, few of which seem, at first glance, likely to spur a heated split among the justices.
As Amy Howe notes in SCOTUSblog, at least cases advancing a conservative agenda--one concerning a religious non-profit’s demand for state playground funding and the other an attempt to expand Fifth Amendment barriers against local zoning regulations—were not scheduled although they have been fully briefed. And the Court has denied review in other important cases dealing with, for example, a demand by religious pharmacist for exemption for laws requiring them to dispense contraceptive pills and a First Amendment challenge to campaign-contribution disclosure rules. In the pipeline, meanwhile, are issues the Court can’t dodge, prominent among them the civil rights of transgender students and the constitutionality of voter-suppressive ID requirements. These will come out far differently depending on whose cat is gored in November.
The Internet is full of confident predictions about what kind of court will follow the victory of one candidate or the other. I want to go firmly on record as having no more idea than a jaybird.
History will regard the period between the accession of John Roberts in 2005 and the death of Antonin Scalia in 2016 as the First Roberts Court. Love it or hate it, that court is now history, and the institution is in an oddly humbled interregnum. Like public-school teachers who have no textbooks, or highway engineers who try to maintain crumbling bridges without appropriations, the justices currently seem like hard-working government employees trying to do their job despite frivolous malfeasance by their political masters.
Soon enough, though, we will have a full court and a docket full of fate-of-the-nation cases once again. When the box is finally opened—when we learn what happens to the cat—we may find ourselves missing the palmy days of Schrodinger’s Court.
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