Major Cases in New SCOTUS Term – Should Kavanaugh Be the Tie-Breaker?

• This week marked the beginning of a new Supreme Court term, with only eight justices on the bench while the Senate wages a fiercely divisive battle over whether Judge Brett Kavanaugh should fill the ninth seat.
• This isn’t the first time the high court has had a vacancy at the start of a new term. In 2016, the court faced a similar situation after Justice Antonin Scalia died earlier in the year and Republicans in the Senate refused to hold confirmation hearings for President Barack Obama’s nominee, keeping the seat vacant for nearly a year.
• Until a new justice is confirmed, the court could deadlock in an even tie on some cases.

What happens in a split decision?

A split decision effectively upholds the ruling of the lower court. In the event of such a tie, the court typically issues what’s known as a “per curiam” decision.

When a 4-4 deadlock does occur, the case is not deemed to have set any sort of precedent.

Justices traditionally don’t participate in cases that were argued before they joined the court, though there’s no rule against it.

Pending cases

Weyerhaeuser Company v. U.S. Fish and Wildlife Service: On Monday, the court considered a case concerning the U.S. Fish and Wildlife Service’s (FWS) designation of private land in Louisiana as critical habitat for the dusky gopher frog under the Endangered Species Act. Landowners are challenging the designation, which would require them to take a variety of actions including replacing existing trees with different species, halting timber management activities, and allowing the land to be managed and populated with frogs.

Madison v. Alabama: On Tuesday, the court heard arguments as to whether a state may execute a prisoner whose mental disability leaves them with no memory of their crime.

Knick v. Township of Scott, Pennsylvania: On Wednesday, the justices heard arguments in a case that was brought by a property owner in Pennsylvania challenging the town’s ordinance requiring her to allow the public to visit an old cemetery located on her farm. The justices will decide whether to overturn a 1985 ruling that property owners challenging municipal laws must first sue in state courts, rather than federal courts. Legal experts say that if the high court were to agree with her claim, it could have a major impact in California because it could bolster property rights claims and send them directly to federal courts.

Nielsen v. Preap: Next Wednesday, the court will review a class-action suit from California to decide whether federal agents can arrest and jail legal immigrants who have past criminal charges on their records, including drug possession. The 9th Circuit Court rejected this mandatory-detention policy and said these detainees can go free after a bond hearing if they’re not likely to flee and don’t present a danger to the public. The Trump administration urges the court to uphold mandatory detention.

Gamble v. U.S.: Later in the term, the justices will decide whether to overrule the “dual sovereignty” exception to the double jeopardy clause of the U.S. Constitution’s Fifth Amendment. An Alabama man convicted of firearms violations in both state and federal courts is challenging the doctrine. If the court rules in his favor, it will mean federal and state prosecutors will not be able to try a defendant for the same offense.

Some legal observers view the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Special Counsel Robert Mueller is investigating any possible links or coordination between Trump and the Russian government to interfere in the 2016 presidential election.

The justices are also likely to consider in the year ahead whether the administration can restrict transgender people from serving in the U.S. military and whether the 2020 census should include a new question on citizenship. California and other states with large immigrant populations oppose this change, arguing it will dissuade people from being counted.

What do you think?

Should the Senate confirm Kavanaugh? Why or why not? Tell your reps what you think, then share your thoughts below.

—Sara E. Murphy

(Photo Credit: iStock.com / dkfielding)