Wednesday, February 24, 2016

Will John Roberts Save SCOTUS From Paralysis?

With Senate Republicans all but screaming out that the are willing to subvert the U.S. Constitution rather than affirm a nominee to the Supreme Court offered up by Barack Obama - a black man despised by the GOP's increasingly racist base - the Court appears headed toward paralysis with numerous 4-4 decisions which will result in inconsistent application of the law in the different Court of Appeals circuits.  A piece in Slate makes the case that perhaps Chief Justice John Roberts will work behind the scenes to keep this from happening.  It's a nice thought, but only time will tell if the conjecture is accurate.  Here are article highlights:
With Justice Antonin Scalia’s sudden death earlier this month, the Supreme Court has gone from a sleeper issue in the 2016 election to the only issue. Democrats are trying to make political hay of Republicans’ unprecedented obstructionism. Mitch McConnell said again on Tuesday that there will be no confirmation hearing for any nominee until after November’s election, and Republicans on the Judiciary Committee also reiterated that there will be no hearing and no vote.

The need for electoral action will feel more urgent if the Supreme Court’s much-touted term of the century—including pending cases on abortion, affirmative action, religious liberty, voting rights, and funding for public sector unions—ends in a raft of confusing 4-4 ties. A series of ties would be disastrous in a term full of landmark cases. The practical effect would be that while the lower court decision stands in that jurisdiction, the new rule doesn’t apply throughout the country. The decision has no precedential value, and you may end up with a crazy quilt of constitutional law. That should scare voters!

The problem with this hypothetical is that it assumes the Supreme Court will glumly play along, showcasing their institutional paralysis and despair. . . . split votes dutifully along 4-4 lines, write angry dissents, and more or less perform a Still Life in Dysfunction for the next four months.

That may still happen, but it’s not the most likely outcome. As several astute court-watchers have already observed, Chief Justice John Roberts is nobody’s Exhibit A, and he has the ability to control and guide the high court in ways that may avoid the kind of public trainwreck that Democrats are hoping for. 

Goldstein [od SCOTUS Blog] went on to note that “there is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.” Holding cases over for reargument next term only works if there are hearings and a vote this summer. But even if they cannot order reargument, there’s always the option of deciding the closely fought, closely watched cases on narrow technical grounds this year, and waiting for them to trickle back to the high court after Scalia’s seat is filled.

This is where John Roberts may come in. If anything matters as much to the chief justice as his own ideology, it’s institutional appearances. There is nothing Roberts hates more than public attempts to play political football with his court, regardless of which side is lobbing the ball. In a speech in Nebraska last year, Roberts talked openly about the ruptured state of affairs in Washington, noting that the “partisan rancor” of Congress “impedes their ability to carry out their functions.” He fretted, “I don’t want this to spill over and affect us.”

[Y]ou can rest assured that Roberts, as well as his seven remaining colleagues, would hate being at the center of the 2016 election almost as much as they’d dislike moderating or narrowing any one vote in a close case. I suspect that fears that the term will end with a vast, paralyzing 4-4 thump are likely overblown. The question is how the court will avoid those angry deadlocks.

Maybe, says Simon Lazarus in the New Republic, Roberts will temper some of his own votes to avoid the appearance of politicization, as he has done in the past. Or maybe, says Jill Filipovic in Cosmopolitan, Anthony Kennedy now has cover to strike down the Texas abortion restrictions since that case has no precedential value. Either way, watch for a muted end of the term rather than the expected fireworks. As Epps concludes, “the current Republican tantrum may change minds inside the marble palace; it may do more to break a Republican ‘bloc’ than Barack Obama ever could.”

[D]don’t look to the Supreme Court for signs of panic or dismay. Now more than ever, the justices will surely send signals that business goes on as usual, and that politics plays no role in any of it. Perhaps the ultimate paradox here is that the one justice who embraced the court’s position at the epicenter of political debate is not only gone from the court, but is the direct cause of what may be a quieter 2016 term than anyone could have expected.

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