Supreme Court has next batch of cases but still lacks 9th justice

In this Feb. 25 file photo, a flag in the Supreme Court building’s front plaza in Washington flies at half-staff in honor of the late Justice Antonin Scalia.
In this Feb. 25 file photo, a flag in the Supreme Court building’s front plaza in Washington flies at half-staff in honor of the late Justice Antonin Scalia. AP

Supreme Court justices are setting out for their summer vacation certain of some things — but clueless about when they’ll be back at full strength.

The eight justices know they will return in October for challenges involving Texas Death Row inmates, North Carolina political districts and high-tech giant Microsoft. On Tuesday, their last day before ending an extraordinary term, they accepted additional cases that will await their return.

“The Supreme Court term that ended … was more liberal than many had predicted and stranger than anyone could have anticipated,” Steven R. Shapiro, the American Civil Liberties Union’s national legal director, said in a statement Tuesday.

The batch of cases accepted Tuesday include a challenge to the city of Miami’s 2013 lawsuit alleging housing discrimination in the lending practices of Wells Fargo and Bank of America.

With the additions announced Tuesday, the court now has more than 20 cases scheduled for argument in the term that begins Oct. 3. During a typical term, which runs through June, the court will hear about 75 cases; the rest will be added starting later this year.

But ever since the Feb. 13 death of conservative Justice Antonin Scalia, the court has been navigating atypical terrain that has no end in sight.

Scalia’s absence was evident again Tuesday, when the court declined to hear a religious-based challenge from Washington state pharmacists who object to providing certain forms of contraceptives. Three conservative justices wanted to hear the case; Scalia would have provided the necessary fourth vote.

“This case is an ominous sign,” Justice Samuel Alito warned in an unusual written dissent.

In other ways, too, Scalia’s death changed the court, which now consists of four justices appointed by Republican presidents and four appointed by Democrats.

Scalia, for instance, would almost certainly have provided a fifth vote to curtail the union practice of charging nonmembers mandatory fees. Instead, his death left the court tied 4-4 in March, effectively defeating a challenge brought against the California Teachers Association. The court on Tuesday declined a request to rehear the case.

Scalia’s absence also shifted the dynamics of the hour-long oral arguments, which he had long dominated with a combination of darts, barbs and frank expostulations.

“I’m trying to be helpful,” Scalia told a beleaguered Justice Department attorney in one of the justice’s final oral arguments, prompting general laughter.

“I do understand that now,” the attorney allowed, prompting still more laughter.

Scalia’s seat will still be vacant when the court returns in October, because Senate Republicans have refused to hold a confirmation hearing for his successor. President Barack Obama nominated Judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit, on March 16.

Garland has since met with some Senate Republicans, and on June 21 he was unanimously given the American Bar Association’s highest rating of “well qualified.”

“Garland is the best that there is,” one anonymous reviewer told the bar association panel. “He is the finest judge I have ever met. There is no one who is his peer.” All the sources cited in the association’s report are anonymous, in keeping with its policy.

Garland’s short-term confirmation prospects, nonetheless, have not been enhanced by the Supreme Court’s recent tied or closely divided decisions, which remind conservative and liberal activists alike of the difference the next justice might make.

In just the past week, the court deadlocked 4-4 on a Texas challenge to Obama’s immigrant deportation policy and on a question about tribal courts involving the Mississippi Band of Choctaw Indians. By a one-vote margin, the court last Thursday upheld affirmative action at the University of Texas.

Earlier, following Scalia’s death, the court deadlocked 4-4 on two other cases, as well. These affirm lower courts’ decisions but set no precedents. The court sidestepped a deadlock in yet another case, involving a religious-based challenge to the Affordable Care Act’s contraceptive coverage mandate, only by kicking the ball back to a lower court.

“Eight, as you know, is not a good number for a multi-member court,” liberal Justice Ruth Bader Ginsburg told a judicial audience in May.

At the same time, the court’s term showed that Chief Justice John Roberts Jr. had some success with his stated goal of having the court speak with one voice whenever possible.

Thirty-eight of the court’s decisions during the term, or about half, were decided unanimously, a tally by the SCOTUSblog legal affairs website shows. These included the term’s last substantive decision, announced Monday, dismissing the corruption conviction of former Virginia Gov. Bob McDonnell.

Conservative Justice Clarence Thomas, who broke a decade-long silence on the bench by asking a question during a February oral argument, also stood out by writing far more dissenting opinions during the term than any of his colleagues.

Sharp splits will be inevitable on some of the cases set for next term.

One, arising out of a 1980 murder in Houston, centers on how to measure intellectual disability in someone facing the death penalty. Another incendiary case challenges the use of race in North Carolina’s drawing of new congressional district lines.

Still others started with a concrete dispute later overtaken by legal abstractions. These include a complaint originally brought by owners of Microsoft’s Xbox 360 game console, which has now reached the Supreme Court as a question about class-action certification.