WASHINGTON — On Monday, the Supreme Court held arguments in a case for the first time in more than a month. It was the start of another month — another year — of waiting.
It all will change soon, when Donald Trump becomes president and names his nominee for the long-standing vacancy on the high court.
The court today, though, is an eight-justice court — evenly split between justices appointed by Democratic and Republican presidents — and it has been for nearly a year. The situation has altered the balance on the court and stalled the selection of and movement on big legal questions.
That's about to change. Trump will come into office with an opportunity to immediately send a strong message about the legacy he wants to leave, and may begin the process of changing the direction of the Supreme Court with the choice of Justice Antonin Scalia’s replacement. Trump hasn’t settled on a pick yet — but has said that he is still working off his list of 21 possible nominees that he laid out during the campaign.
Most of the names on the list are conservatives backed by the Federalist Society and/or the Heritage Foundation — people who would take the court back to being a conservative-leaning court, with Justice Anthony Kennedy as the decisive vote in ideologically divided cases. The names, by and large, are the types of judges that would have been expected to be considered by any Republican president — although there are a significant number of state supreme court judges on the list, a rarity on the modern high court.
Trump did say at one point last month that he has narrowed his list down to three or four possible nominees (a point reinforced in later reporting from CBS News' Jan Crawford), although his incoming chief of staff, Reince Priebus, also said Trump would not begin interviewing candidates until around the inauguration.
Once Trump does make a decision, attention on the left will be paid to the nominee’s views in areas where Scalia had shown independent streaks — in free speech and criminal procedure cases in particular. The right’s focus largely will be on whether the nominee can be the next generation’s Scalia: a conservative warrior who will boldly present his views in a way that will echo outside the marble hallways of the Supreme Court building — and help the court usher in a new conservative era.
The court’s current waiting, however, comes on the heels of a year in which the court had to adapt and adjust to a new vision of itself several times. Understanding those changes is key to understanding where the court is today — hearing fewer cases and less high-profile ones. The court has agreed to hear arguments in fewer than 60 cases this term, a significant drop-off from the 80-plus cases the court heard in the last term. Although the court could still agree to hear more cases this term, time is running out — and they accepted no new cases out of their first January conference. New cases would have to be granted in the next week or two to be heard on an ordinary schedule this term.
The lack of clarity about where the court is — and what it will become — appears to have led the eight justices to pull back a bit, preferring to wait until the ground has settled and the court has returned to its full bench of nine judges.
The court’s direction is very difficult to change, and the last year has been atypical in its uncertainty. Before former Chief Justice William Rehnquist’s death in 2005, for example, the court had the same nine members for more than a decade.
Throughout the Obama presidency even, the court did not change much when it came to the bottom-line: votes. Two generally liberal justices replaced justices who had become two of the consistent liberal votes on the court.
President Obama’s nomination of Judge Merrick Garland to fill Scalia’s seat would have shifted the court significantly, with Justice Stephen Breyer or Garland himself becoming the ideological center of the court. Garland — a well-regarded, well-liked DC lawyer with a long history in the nation’s capital — appeared, in many ways, to be the Democrats’ John Roberts, an institutionalist with views largely in alignment with his party.
That was enough, though, to stymie his nomination. Republicans in the Senate refused to proceed in considering the pick, leading to a third phase at the court: accepting eight.
Of the cases decided by the Supreme Court in the time in between Scalia’s death and Trump's election, Chief Justice John Roberts and Kennedy voted the same way on all but eight cases. There was no justice with whom Roberts agreed more in that time than Kennedy.
What’s more, five of the cases in which Roberts and Kennedy split featured non-ideological lineups. In other words, only in three cases did Roberts and Kennedy part ways in cases that had ideological results. In all three — involving judicial recusal, affirmative action, and abortion — Kennedy joined the more liberal justices to give the liberal side a win. In many cases, moreover, Justices Clarence Thomas and Samuel Alito were left alone dissenting.
Roberts pairing up with Kennedy whenever he found it possible to do so had a very specific result on the eight-justice court: Either the result was a broad vote for the outcome with 6 or more justices in the majority — meaning that Roberts got to decide who would write the court’s opinion — or the result was a split 4–4 court — meaning the lower decision stood, generally the best-case scenario for the conservatives during this time. (There was one case where this didn’t happen: Breyer joined the conservatives in a Fourth Amendment case, giving conservatives their sole 5–3 win on the eight-justice court.)
These kind of shifts aren’t accidental.
Over the summer, when it appeared Hillary Clinton would be elected president, Breyer joined the conservatives in allowing a stay to be issued in a transgender student’s case with a fairly transparent aim of getting conservatives to grant similar “courtesy” fifth votes for stays where the liberals wished to be hearing cases — specifically, death penalty cases. Notably on Nov. 3, Roberts gave such a “courtesy” vote for a stay in a death penalty case out of Alabama — halting Tommy Arthur's scheduled execution.
A liberal court was on its way, and Roberts — preparing to be a chief justice in the minority — was making moves to try and keep some sort of command, even if by acquiescence, over his court. Then Election Day happened, and everything changed again.
Far from a coming liberal court, the end result likely will be a court that returns, by and large, to the way it was before Scalia’s death — with Kennedy playing his continued role as the key vote in many cases.
The fact that Trump publicized his list of 21 possible Supreme Court nominees long before the election, and the fact that he apparently is adhering to it in his selection process, means that the justices have some idea of who likely will be joining them later this year.
In December, a signal of this new phase was seen when the court, on a 4–4 vote, allowed the execution of Ronald Smith Jr. in Alabama to proceed. The chief justice, unlike a month earlier, did not provide any “courtesy” fifth vote, and Smith was executed later that night. None of the justices wrote anything regarding those decisions, so there is no clear explanation for the votes.
It was, at the least, clear that Roberts no longer felt it necessary to defer to the wishes of the liberal side of the court.