WASHINGTON (UPI) — The Supreme Court begins a new term Monday shorthanded and with its future hinging on the outcome of the Nov. 8 presidential election.
There will be only eight justices, not nine, for the first time in decades, starting the new session. The docket is also absent big-ticket cases involving immigration reform, affirmative action, abortion, same-sex marriage and Obamacare, the Washington Post reported. Those are the topics that in recent years have put the Supreme Court in the spotlight.
This time, the docket will be more humble, but with a tinge of contemporary topics, including free speech, the role of race in criminal justice and the treatment of transgender students.
Work begins with the high court having no way to know how ideology will eventually line up, Constitution Daily reported. The future will be determined by whether President Barack Obama will be allowed to name a successor or whether the task falls to a future president.
The uncertainty could last through February or later, depending on how the White House and Senate work together and make up their minds on a successor.
The vacancy occurred with the unexpected death of Justice Antonin Scalia, who died nearly eight months ago. The Senate has since refused to interview a successor chosen by Obama – Circuit Judge Merrick B. Garland – saying the job should be left to the next president to present a nominee.
Whoever the successor is, he or she could be the deciding vote on the Supreme Court for years or decades to come. There are also three current justices who are now older than other members who recently retired from the court, which suggests there could be more departures to fill.
“I really don’t think there can be any doubt that if Chief Judge Garland is in fact the next justice on the Supreme Court, it is going to lead to a sea change in the direction of the court on many of the most consequential issues of the law,” said Kannon Shanmugam, a Washington lawyer and former Scalia clerk who represents clients before the Supreme Court.
Stanford law professor Pamela S. Karlan said during a recent preview session at William & Mary Law School, the future can be summed up in two words: “It depends.” She said Democratic presidential nominee Hillary Clinton, if elected, may be better off sticking with Garland.
“The political capital that a President Clinton would have to exert to nominate someone else, unless she has a filibuster-proof Senate, might not be worth it,” Karlan said.
If Republican presidential nominee Donald Trump is elected, he has promised to choose a new justice from a list of 21 possibilities the conservative legal establishment has approved. Democrats, though, would not make it easy for Trump to fill an opening that occurred under a Democratic president.