This summer, the Practising Law Institute (PLI) held its 18th Annual Supreme Court Review. PLI faculty and guest panelists came together to discuss the most recent session of the Supreme Court’s greatest takeaways, surprises and insights. These experts discussed the most recent session’s cases, merits, and how the justices came to their conclusions. They also addressed the future of the court and what they expected for the new session. One of the biggest topics on the table was, of course, the loss of Justice Antonin Scalia, and how his passing has affected the rulings of the court and its future.
Tomorrow, the Presidential Election is here, but more than just four years’ worth of policies will be decided alongside it. With the next president comes the next appointed Supreme Court Justice, the replacement for the late Justice Scalia. The next sitting president will be responsible for appointing a Supreme Court Justice who will hold the office for a good number of years. However, since several of our current sitting Supreme Court members are reaching the age in which it is common to retire from the court, the new president may have the opportunity to appoint more than one justice in the next four to eight years.
A Court of Eight Justices
Practising Law Institute’s Dean Erwin Chimerinsky started the discussion of the consequences of Justice Scalia’s passing, mainly that the court is less effective without its final judge. The most important cases since Scalia’s passing, according to Dean Chimerinsky, fit a pattern that highlighted the crutch faced by the current court one justice shy of a full deck – deadlock.
We have seen several cases in which a justice crossed sides in order to sway a decision, but the lack of a ninth vote has deadlocked the court in some of the most controversial cases, forcing rulings to stand at the state level. On topics like abortion and immigration passions and partisanship are high, which can lead to a deadlocked court. Sometimes this provided a liberal outcome, and sometimes a conservative one, but either way leaves the standing ruling without commentary from the Supreme Court. Likely, these cases and issues will resurface in future sessions once the court is whole again.
An interesting result of this deadlock is a willingness in the justices to broker a compromise. The first panel of the day addressed the outcome of Zubik v. Burwell, a case on contraceptive coverage under the Affordable Care Act. When the court looked to be deadlocked once again, the justices decided on an attempt to reach a compromise, asking the two parties to work together to find an alternative solution. Once the parties agreed to continue to look for a solution, the decision was once again provided to the lower courts for specific deliberations. The attempt at brokering a solution for both parties was unprecedented, and one must wonder whether there will be more compromises suggested in future cases.
The Future of the Court
With the election comes quite a challenging atmosphere for the Supreme Court. The newest elected president might have the opportunity to appoint more than one justice who will sit on the court for more than a decade, affecting a great deal of cases. In addition, a potential continued block from Senate Republicans in a Democratic victory this election leaves the ninth seat in a state of uncertainty. Without a ruling on crucial cases that affect a great number of people in the country, and the continuing potential for a deadlocked court, it begs the question as to whether the court can continue to be as effective in future sessions without the addition of a ninth justice.
Whatever the outcome of this election and future appointees, the Practising Law Institute’s expert faculty and panelists will undoubtedly address it at next year’s review!
Faculty & Panelists
- Erwin Chemerinsky
Dean of the School of Law
Distinguished Professor of Law Raymond Pryke Professor of First Amendment Law
- Martin A. Schwartz
Professor Emeritus of Law
- Joan Biskupic
Visiting professor at the University of California, Irvine, law school
- Sherry F. Colb
Professor of Law & Charles Evans Hughes Scholar
Cornell Law School
- Michael C. Dorf
Robert S. Stevens Professor of Law
Cornell Law School
- Leon Friedman
Joseph Kushner Special Professor of Civil Liberties Law
Hofstra Law School
- Marci A. Hamilton
Senior Fellow, Program for Research on Religion and Urban Civil Society
University of Pennsylvania
- Burt Neuborne
Norman Dorsen Professor of Civil Liberties, Founding Legal Director, Brennan Center of Justice
New York University School of Law
- Cristina Rodríguez
Leighton Homer Surbeck Professor of Law
Yale Law School
- Theodore M. Shaw
Julius L. Chambers Distinguished Professor of Law & Director of the Center for Civil Rights
University of North Carolina School of Law, Chapel Hill
- Honorable Jeffrey S. Sutton
Judge, United States Court of Appeals for the Sixth Circuit
- Jeffrey B. Wall
Special Counsel, Co-Head Appellate Litigation Practice
Sullivan & Cromwell LLP
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