The Supreme Court stands at a crossroads. As the court prepares to hear its first cases of the 2016-2017 term next week, Senate Republicans’ unprecedented six-month blockade of Chief Judge Merrick Garland’s nomination has resulted in a state of dysfunction at our nation’s highest court. This upcoming term demonstrates both the incredible importance of the Court and how it has been dangerously hobbled by the lack of a ninth justice.
Last term, the shorthanded Supreme Court failed to decide a host of critical issues, sometimes punting the issue back to lower courts. The Court presumably deadlocked in Friedrichs v. California Teachers Association, which examined whether union dues were a form of compelled speech. In Zubik v. Burwell, the justices proved unable to determine the rules governing a non-profit’s ability to opt out of providing their employees birth control, while in U.S. v. Texas the court eschewed its duty to determine whether President Obama’s DAPA immigration order (protecting 4 million individuals) exceeded his constitutional authority. The Supreme Court is supposed to be the final arbiter of law in our constitutional system; last term, it was often was a symbol of paralyzing indecision.
The Court’s docket this year is again replete with hot-button issues. While there are currently no blockbuster cases, racial bias in the criminal justice system (Pena-Rodriguez v. Colorado), separation of church and state (Trinity Lutheran Church of Columbia, Inc. v. Pauley), and the death penalty (Buck v. Davis) will all be examined by the justices over the coming months. Racial gerrymandering is before the court in two cases, Bethune Hill v. Virginia State Board of Elections and McCrory v. Harris, which concern the legitimacy of trying to diminish African-American voting power when redrawing congressional districts. Finally, Wells Fargo v. Miami and Bank of America v. Miami address whether Miami can sue banks under the Fair Housing Act for issuing predatory mortgage loans to minority homeowners.
Meanwhile, there are a number of potential blockbuster cases percolating in the lower courts. G.G. v. Gloucester County School Board concerns the right of a transgender male student to use the bathroom that corresponds with his gender identity; he won before the Fourth Circuit Court of Appeals but the Supreme Court has granted a temporary stay of the decision. President Obama’s clean energy plan is being challenged before the D.C. Circuit, and a number of restrictive voting laws are being examined by courts around the country. The Justice Department has also asked the Supreme Court to rehear U.S. v. Texas.
Unfortunately, the court’s inaction on these critical matters has real-life consequences. With one seat empty, the court will leave more than four million immigrants living in the shadows and risks placing our environment in even graver danger. These pressing issues will continue unresolved by the nation’s highest court until it has a ninth justice. In the meantime, the Court will be forced to confront matters of life and death, representative democracy, and racial bias, while shorthanded. We need nine – for justice, for fairness, and for the durability of constitutional governance.