Fisher II and Scalia's passing

bclintonk
Sun, 14 Feb 2016 03:04:35 +0000

Justice Kagan isn’t participating in the Fisher case. She recused herself because she was involved in an earlier phase of the case, serving as Solicitor General when her office filed an amicus brief. So only 7 Justices will decide that case–4 conservatives and 3 liberals, if you want to break it down that way, though Justice Kennedy is often a wild card and during the oral argument he didn’t seem to be in quite the same place as the other conservative Justices. That probably puts Justice Kennedy in the catbird seat–just where he likes to be–because neither side can get to a majority without him.

A number of other controversial cases will now likely be 4-4, in which case the lower court ruling stands. There will be a lot of pressure on the Chief Justice to avoid a long and embarrassing series of seemingly pointless 4-4 decisions that waste everyone’s time and resources; so the Chief will be looking for compromises or narrow procedural rulings that can command a majority or even a consensus. There will also be lots of opportunities for Justice Kennedy to play footsie with the liberals because with them he can get to a majority, but he can’t with the conservatives as long as there are only 8 votes. And this could go on for a long time. Mitch McConnell is saying the Senate won’t vote on a Supreme Court nominee for the remainder of President Obama’s term. If they hold to that, it means the earliest we can get a replacement Justice would be around March of 2017. That would leave the Supreme Court in a semi-incapacitated state for the better part of two terms, since most of the big cases from this term (October-June) haven’t yet been decided, and a new Justice wouldn’t come on board until around 2/3 of the next term’s cases have been heard, with the new Justice presumably unable to participate in cases that he or she didn’t hear.