Like every year, the U.S. Supreme Court began its new term on the first Monday of October. But this is not like every other year. With just eight justices, the Supreme Court is slated to pass Election Day with a vacancy on its bench for the first time since 1864, when America was in the height of the Civil War. The blame lies squarely at the feet of obstructionist Senate Republicans who have denied Chief Judge Merrick Garland, President Obama’s nominee to the Supreme Court, a hearing and vote for more than 200 days.
This is precedent-setting obstruction, even for this Senate. As voters, we must be thinking about the Supreme Court on Election Day and thereafter.
Last term, despite its efforts to avoid deadlocks, the Court split 4-4 or bucked the merits on major cases. In these cases, the Court’s inability to decide left lower courts’ decisions in place by default and set no new precedent—simply as if the Court never heard the cases. This year, the Court has refused to rehear 4-4 splits from last year—including U.S. v. Texas, the case that put President Obama’s immigration actions on hold, leaving millions of immigrants and their U.S. citizen family members in limbo. And before this term even officially began, the Court split 4-4 this summer on whether to reinstate North Carolina’s voter suppression law that a lower court invalidated after finding that it targeted black voters with “almost surgical precision.” The Court’s deadlock upheld, by mere default, the lower court’s decision to strike the law.
As a result of continued Senate inaction, the Supreme Court has noticeably not yet taken on the typical slate of blockbuster cases this term. Undoubtedly, the cases the Court will be hearing this year are important, and include, among others, questions regarding the impact of racial bias in the courtroom and the use of race in drawing legislative districts; the application of the death penalty; and cities’ ability to sue for discrimination on behalf of their residents.
It’s not guaranteed that the Court will be able to reach a decision in the cases that they have already agreed to hear, but without a full bench, the Court has been avoiding accepting or scheduling particularly controversial cases where they may divide. For example, the Court recently refused to take on a campaign finance investigation case from Wisconsin, despite a glaring conflict of interest and important issues of judicial recusal and campaign finance that only the Supreme Court can resolve.
Contrast this term to those that have come before. Last year, the Court took on major cases about abortion access and birth control, immigration, and affirmative action, just to name a few. The year prior, the Court ruled on a major portion of the Obama administration’s Affordable Care Act in Hobby Lobby, decided a major environmental protection case, and struck down overall limits for campaign contributions individuals make to candidates and political parties—again, to name only a few from that year. The year before that, the Court ruled to establish the constitutionality of marriage equality and to gut the Voting Rights Act. The year before that? The Court mostly struck down Arizona’s controversial immigration law and upheld the individual mandate that is at the heart of the Affordable Care Act.
The Supreme Court is meant to be the final arbiter on critical questions of constitutional rights, statutory interpretation, and government power—as it always has been. Although there are other major cases in the Supreme Court pipeline this term—including voting rights cases, a challenge to the Obama administration’s Clean Power Plan, and whether transgender students have the right under federal law to use the school bathroom that conforms with their gender identity—the Court is not likely to take on or schedule arguments in these cases until the vacancy is filled.
As the Supreme Court delays or refuses to accept the most controversial cases, our democracy suffers. Lower federal courts will continue to operate under different legal interpretations, meaning that for many across the country, their ability to access justice may be determined by where they happen to live. Meanwhile, justice is delayed for millions of Americans.
It’s time for senators to do their jobs so that the Supreme Court justices can do theirs, too.
Abby Bar-Lev Wiley is a Policy Analyst for the Legal Progress team at the Center for American Progress.
Video credit: Center for American Progress