Block on Trump's Asylum Ban Upheld by Supreme Court
The death of Justice Ruth Bader Ginsburg leaves the U.S. Supreme Court with eight judges during the most litigious election season in anyone's memory.
Is there reason to be concerned?
First, it's important to keep in mind that this is nothing new. There have been other times when the court was down to eight justices. Most notably, the court had only eight justices for a full 14 months in 2016-17 following the death of Justice Antonin Scalia because Republicans refused to consider President Barack Obama's nominee, Merrick Garland. There were four tie votes during that period.
Also, 4-4 ties have sometimes occurred when the court was at full strength, when a justice decided to recuse due to a conflict or appearance of conflict.
So, what happens when justices deadlock at 4-4? Nothing, really. The rulings issued by the lower federal courts or state supreme courts simply remain in effect as if the Supreme Court had not even heard the case.
This does not mean, however, that the rulings of the lower courts have any precedential value. It also does not mean that the Supreme Court can't decide to reconsider the case when it's back up to full strength.
At a time like this, however, the number of justices on the court takes on enormous importance. Hundreds of election-related cases await resolutions in the nation's courts, some of them heading for the Supreme Court. And then there's the near certainty of legal battles following the general election a mere five weeks from now.
Despite Republicans' assertions in 2016 that Supreme Court openings should not be filled during the final year of a presidency, this year they wasted no time in pushing hard to fill the vacancy as soon as possible. Just eight days after Ginsburg's death on Sept. 18, President Trump nominated Amy Coney Barrett, a noted conservative federal appeals court judge, to fill the seat.
That left only 38 days to the general election, and Trump has made it clear that he wants a full court in place by that time to deal with anticipated election litigation. If the Senate confirms Barrett prior to election day, it would be an unusually fast procedure, but not unprecedented. In 1975, President Ford's nominee, John Paul Stevens, was confirmed in 19 days and President Reagan's nominee Sandra Day O'Connor was confirmed in 33 days in 1981.
In addition to getting the vacancy filled for election litigation, Trump and the Republicans want a full court to hear arguments in a case on Nov. 10, just one week after the election, that could determine the fate of the Affordable Care Act.
The addition of Barrett shifts the conservative power on the court significantly. The current makeup of the court gives conservatives a 5-3 advantage, but Chief Justice John Roberts has proven to be a swing vote at times, joining liberal positions on several occasions. Neil Gorsuch has sometimes parted ways with fellow conservatives as well.
It appears that Democrats have little power to slow down the nomination process, so the likelihood of a nine-justice Supreme Court by election day is strong.
But that doesn't mean that a tie vote – the subject of this post – is no longer relevant. Here's why: Senate Democrats and legal experts are making the case that, if confirmed, Barrett should recuse herself from any Supreme Court litigation stemming from the election.
Their argument is that Barrett could be seen as having a conflict of interest because she would be voting on a matter that might affect the man who nominated her.
New York University Law School professor Steven Gillers, a noted ethics expert, told Reuters on Sept. 27 that Democratic presidential nominee Joseph R. Biden Jr. would be warranted in requesting that Barrett recuse herself. But there is no way Democrats, or anyone, can force her to do so because recusal decisions are strictly up to justices themselves to make.
That won't step Senate Democrats from seeking that kind of commitment during the confirmation hearings, however. Sen. Cory Booker (D-N.J.), a member of the Senate Judiciary Committee, said he would be meeting with Powell and asking her to recuse.
Whether the Supreme Court has eight justices or nine, it almost certainly will play a role in determining how this election will play out. It's already ruled on several, with mixed results.
But will we see something like another Bush v. Gore? There's no way of knowing, of course. But if you're not prepared for surprises in the wake of this election, you're not paying attention.