Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants. Continue Reading...