The US Supreme Court was to begin its new term yesterday with the crack of the marshal’s gavel and not a camera in sight after the nomination hearing of Judge Brett Kavanaugh last week attracted nationwide attention.
The televised hearing was filled with allegations of sexual assault and Kavanaugh’s denial.
Kavanaugh could have been confirmed in time for the court’s first public meeting since late June, instead, there are only eight justices on the bench for the second time in three terms.
The court was down a member in October 2016, too, following the death of Justice Antonin Scalia. Justice Neil Gorsuch joined the court in April last year, after all but about a dozen cases had been argued.
It is unclear how long the vacancy created by Justice Anthony Kennedy’s retirement in July will last.
Consideration of Kavanaugh’s nomination by the US Senate has been delayed while the FBI undertakes an investigation of Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her in 1982.
An empty seat on the bench often forces a push for compromise and leads to a less exciting caseload, mainly to avoid 4-4 splits.
The cases the court has agreed to hear so far this term look nothing like the stream of high-profile disputes over US President Donald Trump’s travel ban, partisan redistricting, union fees and a clash over religious objections to same-sex marriage that the court heard last term.
“It’s a time of transition for the Supreme Court,” US Solicitor General Noel Francisco, the Trump administration’s top Supreme Court lawyer, told a Federalist Society meeting in Washington.
Kennedy will not be on the bench for the first time in more than 30 years, meaning lawyers will not have to aim their arguments at attracting his swing vote.
“All eyes ought to be on the chief justice [John Roberts],” said Greg Garre, a solicitor general during former US president George W. Bush’s time in office.
Roberts’ votes in favor of former US president Barack Obama’s Affordable Care Act show “he’s willing to buck other conservatives on hot-button, high-profile issues,” Garre said.
In addition, even if Kavanaugh or another Trump nominee joins the court, Roberts’ concern about the public’s perception of the court might make him unwilling to move the court too far, too fast in any direction, Garre said.
So far, the court has agreed to hear about 40 cases, and could add a few dozen more to decide by the end of the term in June next year.
The first case involves the federal government’s designation of Louisiana timberland as critical habitat for the endangered dusky gopher frog, despite the frog only being found in Mississippi.
Two cases involving the death penalty are to be argued in the first two months. lawyers for Alabama death-row inmate Vernon Madison are to argue that he should not be executed because strokes and dementia have left him unable to remember details of the killing of a police officer in 1985, while Missouri inmate Russell Bucklew is to say he should not be executed by lethal injection because he has a medical condition that could cause him to choke during the procedure.
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