IU panel: Divided Supreme Court complicates predictions

Post by IU Newsroom intern Annie Brackemyre

Many law and political science professors who follow the Supreme Court will playfully, but often seriously, gamble on decision outcomes. They bet on who will vote which way, what the dissent will argue and any other part of an anticipated decision. But with a split court, both the legal and political outcomes before the court remain uncertain and, in some cases, are left undecided.

President Barack Obama’s nomination of Merrick Garland muddies any forecast of what a future Supreme Court looks like. More than ever, predicting legal outcomes is a gamble.

During the “Supreme Court Roundup: Can there be justice without a justice?” panel on April 19, panelists Beth Cate, associate professor in the School of Public and Environmental Affairs, Paul Helmke, professor of practice in SPEA, and Andrea Need, lecturer and director of undergraduate academic affairs in SPEA, grappled with the uncertainties and walked through a few issues on the court’s docket. The SPEA law and public policy program sponsored the panel.

Panelists, from left, Andrea Need, Paul Helmke and Beth Cate discuss current Supreme Court cases.

Panelists, from left, Andrea Need, Paul Helmke and Beth Cate discuss current Supreme Court cases.

Panelists discussed the politics around Garland’s appointment, diversity on the court, the possibilities of the University of Texas affirmative action case in its second round, the implications of a splintered court in the Fifth Circuit abortion case and the implications of the recently argued Deferred Action for Parents of Americans and voting cases.

The seat on the bench left empty with the death of Justice Antonin Scalia renders future cases increasingly speculative. The fight for and against Garland is primarily political, not legal, Helmke said.

“By elephant in the room, we are referring to the Republican refusal to consider Garland’s nomination,” Helmke said, making a joke about the Republican elephant iconography. “It fascinates me that they’ve been able to get away with this.”

Republicans have controlled the court for 46 years and any movement further to the right concedes control and admits a degree of defeat, Helmke said.

“Garland was an olive branch candidate,” Cate said. “But he isn’t being perceived that way.”

One possibility, Helmke said, is for the Obama administration to speed past the confirmation process. The Senate has a responsibility to advise and consent on Supreme Court nominations. If it refuses to advise, Obama might have the power to accept silence as consent, he said.

Helmke posed what he considered a more realistic possibility: that more Republican senators will agree to meet with Garland as the general election approaches. The Democrats need five seats to take control of the Senate. Republican senators in contested races are increasingly likely to meet with Garland as public opinion shifts towards a confirmation hearing and their seats become increasingly endangered.

Meanwhile, controversial abortion and affirmative action cases hang in the balance while the confirmation process continues. After a deadlocked court failed to rule, the March labor union victory in a case involving California teachers illustrated the impact of Scalia’s absence.

Fisher v. University of Texas is less stagnant because Justice Elena Kagan recused herself from the Texas affirmative action case, rebalancing the liberal-conservative split. The case evaluates the use of race as a narrowly tailored deciding factor in college admissions to achieve diversity.

“We accept diversity is a compelling government issue,” Need said. “But what does diversity mean? How do we know when we have achieved it?”

Justice Kennedy, the likely swing vote, seems to want more data on the impact of the racial policies, panelists said.

“This is a clear difference between law and policy,” Helmke said. “The case is narrowly focused on diversity and can’t also grapple with equalizing educational opportunity before higher education.”

Cate formerly served as in-house counsel at IU and noted how keenly universities nationwide track decisions related to race and admissions, aware of imminent upheavals in the admissions process.

The Fisher case comes 13 years after Justice Sandra Day O’Connor’s famous opinion in Grutter v. Bollinger, which said, “…the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Kennedy holds the crucial vote again in the ongoing abortion case, Whole Woman’s Health v. Hellerstedt. The case challenges Texas laws requiring doctors who provide abortion services to have hospital admitting privileges and requiring abortion care facilities to meet stringent ambulatory surgical requirements. The Texas case parallels Indiana’s controversial HB 1337, which passed last month.

Depending on Kennedy’s vote, the court could end with a 4-4 gridlock decision, in which case the Fifth  Circuit Court’s ruling in favor of the Texas laws would stand. However, the laws would not create precedent outside of the circuit’s jurisdiction.

Much of the argument focuses on the number of clinics that will be forced to close without the money or facilities to accommodate the new laws.

“The courts seem frustrated with attorneys who can’t tell them how many clinics have closed or will close,” Need said.

The panel also discussed the court’s potential maneuvering to avoid a ruling on United States v. Texas, a challenge against enforcement of Obama’s Deferred Action for Parents of Americans program, or DAPA. But even if Obama wins the case and DAPA enforcements are upheld, the case presents political obstacles.

“If Obama wins, this will be a Republican rallying cry,” Helmke said. “And it’s all arguing around an executive order. The next president can easily overturn the policy. But the case will likely leave lasting rhetoric about the powers of the presidency.”

An op-ed in Sunday’s New York Times by former Sen. Richard G. Lugar, a distinguished professor of practice in the IU School of Global and International Studies, argued in favor of Obama’s authority.

While an empty ninth seat implicitly politicizes the remaining term’s cases, panelists emphasized the ability of the court to unfold to the left or right. If the nomination process is stalled long enough and Hillary Clinton is elected president, the next candidate will almost undoubtedly be less palatable for Republicans. While replacing a justice during an election year is not unprecedented, the absence leaves pivotal cases up in the air.

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