Courting Disaster

The fall term of the US Supreme Court gets underway Monday, and it will only have 8 justices because Republicans took the unprecedented step of denying President Obama's nominee, Merrick Garland, even the courtesy of a confirmation hearing.  Now the court will attempt to go about its business and will remain shorthanded until one of two things happen: Democrats retake the Senate, or Republicans win the White House.

For the first time in decades, there will be only eight justices, not nine, to begin the new term. Also absent are the kind of big-ticket cases — involving immigration reform, affirmative action, abortion, same-sex marriage and the Affordable Care Act — that in recent years have catapulted the Supreme Court to the fore of American civic life.

Instead, the short-handed court has assembled a docket of more-modest cases — albeit ones that touch on contemporary controversies such as the role of race in criminal justice and politics, free speech and perhaps the treatment of transgender students.

Of far greater consequence is the fate of the court’s ideological balance. And on that question, the court finds itself like the rest of the country: waiting to see what happens on Nov. 8.

It has been nearly a half-century since a presidential election promised such an immediate impact on the court. Senate Republicans have refused to take up President Obama’s choice of Judge Merrick Garland for the seat of the late Justice Antonin Scalia, arguing that a newly elected president should fill that vacancy.

As of Sunday, Garland has been waiting 200 days for the Senate to act on his nomination. Obama tapped Garland a month after Scalia’s death in February. But Senate Majority Leader Mitch McConnell (R-Ky.) has been adamant that the Senate will not even hold a hearing on Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

The next president’s impact on the court could go well beyond that one choice and be felt for decades. Three of the current justices are now older than other members who recently retired from the court, suggesting more departures to fill.

A victory by Donald Trump would continue the modern tradition of courts dominated by Republican-appointed members. But Hillary Clinton’s success could upend the status quo at the Marble Palace, producing nominees who would cement abortion rights, affirmative action and gay rights, and challenge hard-won conservative victories on gun rights, strict voting laws and campaign finance.

Any discussion of the Supreme Court these days, Stanford law professor Pamela S. Karlan said at a recent preview session at William & Mary Law School, can be summed up in two words: “It depends.”

And so we move on.  But I will always remember that the Republican party reserved the unprecedented step of denying the first black President a hearing on a Supreme Court nominee...yet another indication that as awful as Donald Trump is, he is merely the symptom of a broken, racist, hateful party that controls Congress.