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Kavanaugh Turmoil Could Knot Court at Eight to Start Term

Sept. 17, 2018, 6:57 PM

The U.S. Supreme Court potentially faces beginning another term shorthanded as explosive allegations of sexual assault threaten to delay, or even derail, Brett Kavanaugh’s confirmation.

The Republican-led Senate hopes to get Kavanaugh on the bench before the court kicks off its term on Oct. 1. But allegations that the Donald Trump nominee sexually assaulted a girl while they were both in high school may make what looked inevitable just days ago more difficult now.

Both Kavanaugh, who denies the allegation, and his accuser, Palo Alto University professor Christine Blasey Ford, have said that they are willing to testify about the matter. That process could push back a Judiciary Committee vote on the nomination, set for Sept. 20, as well as consideration by the full chamber.

All but one of the current justices have plenty of practice sitting shorthanded. For more than a year after the February 2016 death of Justice Antonin Scalia, the court operated with eight justices before Justice Neil M. Gorsuch joined.

Fewer cases were granted on lower profile issues during that time, which would likely occur again without a ninth justice, Supreme Court advocates said Sept. 17 at a Georgetown Law School preview of the Supreme Court term.

For one case, that would likely mean yet another loss by way of a 4-4 tie.

Battered SCOTUS

The justices were probably already hoping for a slower term, Supreme Court practitioner Nicole A. Saharsky, of Gibson, Dunn & Crutcher LLP in Washington, said.

The current justices likely feel “battered” after the contentious Kavanaugh confirmation process, she said.

Justices across the ideological spectrum have recently criticized the politically-fueled vetting of the D.C. Circuit judge and the damage they say it does to the Supreme Court’s reputation, lawyer Kannon K. Shanmugam, of Williams & Connolly LLP in Washington said.

Shanmugam has argued nearly two dozen cases in the Supreme Court, and already has several before the justices set for the upcoming term.

Fewer Cases

Sitting one member short might nudge the justices in the direction of a slower term even more.

If the allegations against Kavanaugh sink his confirmation, the court could be at 4-4 for a while. It typically takes about two months to get a Supreme Court nominee confirmed.

The justices sat shorthanded from February 2016 until April 2017, as Senate Republicans held up the confirmation process for President Barack Obama’s nominee Merrick Garland in hope of winning the 2016 presidential election and naming Scalia’s successor.

During that time, the court granted fewer cases.

It takes four votes for the Supreme Court to agree to hear a case. It is harder to get four of eight votes than four of nine, former Solicitor General Paul Clement of Kirkland & Ellis LLP in Washington said.

Less Controversial

There will, however, be pressure for the justices to fill their oral argument calendars, Saharsky said. The justices typically hear about a dozen cases each month from October to April.

Before wrapping up last term, the justices granted enough cases to get them through December. But they still have to hear cases in January and beyond, Saharsky said. The term ends in June.

The justices are, therefore, more likely to grant review in less controversial cases, where avoiding a 4-4 split is more likely, she said.

An evenly split decision merely affirms the lower court decision, without setting nationwide precedent.

Narrow Decisions

The eight-member court will also affect the cases already on the court’s calendar, Shanmugam, who is set to argue a number of cases in front of the justices this term, said.

Getting the five votes needed to win could result in more narrow decisions, he said. He pointed to the court’s previous shorthanded stint as evidence.

The justices decided several cases on very narrow grounds during that time.

Evenly Split

Franchise Tax Bd. of Calif. v. Hyatt is a good example of those narrow outcomes.

The petitioners asked the high court to overrule a 1979 case that allowed states to be sued in sister states.

The case was argued to a full court in December. By the time the court handed down its decision in April, Scalia had died.

As a result, the court split 4-4 on the question of whether to overturn its previous decision. The justices sent the case back down to the lower court on a more narrow issue.

The case came back to the court while there were nine justices, and appears ready for arguments in December. But if the Kavanaugh confirmation battle drags out, it could put a definitive decision in jeopardy again.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com