Supreme Court limps to finish

By Lydia Wheeler

A short-handed Supreme Court is limping to the finish line.

The court will close out its term on Monday, when it is expected to release its final three decisions, including a challenge to a Texas law limiting access to abortion.

The court has had just eight justices since the February death of Antonin Scalia, a pillar of the court’s conservative wing.

Senate Republicans have refused to allow a vote or a hearing for Merrick Garland, the judge President Obama nominated to replace Scalia. They argue it is appropriate for the next president to name a successor to the court, particularly one who is likely to swing many decisions.

The court has been unable to move forward on a series of cases. The biggest political disruption came Thursday, when a 4-4 tie left an injunction halting key executive actions by Obama on immigration in place.

Democrats have ripped the GOP for the blockade and hope the issue will help them win a Senate majority for their party this fall.

“This 4-4 decision is clear evidence we need nine justices on the court,” Sen. Dick Durbin (D-Ill.) said Thursday from the Supreme Court’s steps.

Conservatives said the tie on the immigration case should bolster GOP arguments, since Obama’s orders might have been ruled legal by a more liberal court with Garland on it.

The court did not offer a ruling on the merits of Obama’s orders, instead leaving a lower court’s injunction in place.

“Make no mistake: If the Senate had confirmed Merrick Garland to the Supreme Court, this case would have eviscerated the Constitution’s checks and balances,” Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, said in statement Thursday.

Immigration activists were left dismayed.

“This case is of such importance not just to the law, but to the millions of families and immigrants affected by it,” said Elizabeth Wydra, president of the Constitutional Accountability Center. “To have the Supreme Court not issue a ruling with nationwide precedent and explain the reason why they reached that result, I think that’s a real travesty.”

A paltry number of cases have been held up by the short-handed court.

If the court issues opinions Monday in the three remaining cases it has left to decide, it will have issued a total of 81 decisions this term. Of the cases decided so far, only four have been 4-4 ties.

The first split came in March in a case that centered on whether a pair of wives should be held financially responsible for the failure of real estate endeavors engineered by their husbands.

The Supreme Court also handed a victory to labor unions in a 4-4 tie in Friedrichs v. California Teachers Association, a case that threatened to roll back state laws requiring some public sector workers to pay union fees.

Before the split on immigration came Thursday, the court issued a 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians, leaving intact a lower court ruling upholding the authority of tribal courts.

Court watchers say the pace at which the court grants review of new cases for next term also has slowed, another sign that the justices are struggling.

“For run of the mill cases this is having no affect, but the high profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court. “

Ides argues that the court found a way around a split decision in the latest challenge to the Affordable Care Act’s birth control mandate by remanding the case back to the lower court and instructing the government and the religious nonprofits that brought the case forward to find a compromise.

The most scrutiny on Monday is likely to be paid to the abortion case.

During oral arguments, the court appeared split on whether to strike down a Texas law that requires doctors at abortion clinics to have patient-admitting privileges at a hospital within 30 miles and meet the same standards as a surgical center. Opponents argue the law — one of the nation’s strictest — has forced clinics to close.

The court will also consider an appeal from former Virginia Governor Bob McDonnell (R), who was convicted of federal corruption charges, and a gun rights case, which centers on the convictions of two men charged with domestic violence.

In the McDonnell case, the court seemed skeptical during arguments in April that his conviction and two-year prison sentence should be upheld under such broad corruption laws. 

After Monday, the court won’t review any new cases until the fall.