As you know, U. S. Supreme Court Justice Antonin Scalia was found dead on February 13, 2016 at Cibolo Creek Ranch in Shafter, Texas. Scalia’s death, which is only the second death of a sitting SCOTUS Justice in the past 60 years, leaves the nation’s highest court with only 8 justices.
The President vowed to make a SCOTUS nomination in the near future of the remaining 300 days in his presidential term. The time between nomination and confirmation of the last 4 SCOTUS justices took an average of 75 days. In addition, since the 1980s, there has neither been a vacancy of more than a single SCOTUS term, nor a vacancy longer than 4 months while SCOTUS was in session. Given normal procedures, the next SCOTUS justice would easily be nominated by the President and confirmed during this Administration. However, we do not anticipate normal procedures.
The Republican-dominated U. S. Senate, which is charged with confirming/rejecting Presidential nominees for SCOTUS Justice, has vowed that it will reject any nominee during this Administration. This differs from the norm, even for currently sitting Senators who had the privilege of considering previous SCOTUS nominees.
The Senate’s intransigence leaves the President with the possibility of appointing an interim Justice during this Senate’s recess. However, a recess appointment would be effective only until the then-current Congress’ term expires, essentially when the new Congress is sworn in after the next election. This might set a record for the shortest term any SCOTUS Justice has served.
Suppose the SCOTUS is nominated on the first day of the next President’s term, January 20, 2017. Judging from the past, the new Justice will be confirmed in early April at the earliest. That Justice will probably hear 12 cases of the 70-80 the SCOTUS will probably hear in its next term. He/she will also miss the 34 cases in which oral argument was already heard plus about 24 pending cases for which oral argument has not been heard. Consequently, a SCOTUS Justice nominated on the first day of the next President’s term will miss approximately 120 cases that will have to be decided by an 8-person Court.
What does it mean when an 8-person SCOTUS decides cases? The SCOTUS typically hears cases in which lower courts are divided (according to our dearly departed Justice Scalia). Its decisions are supposed to resolve the division and set a single rule of law for the entire USA. That’s fine if the SCOTUS decision is not divided 4-4. However, if the SCOTUS decision is divided 4-4, that means the immediate lower court’s decision is affirmed and the SCOTUS sets no single rule of law for the USA. Consequently, people in different parts of the country will be governed by different laws, though a case has gone to and been decided by the SCOTUS. In some circumstances, the 8-person court prevents the SCOTUS from performing one of its highest functions: setting a rule of law for the entire Country.
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