President Trump is expected Tuesday night to announce his nominee for Supreme Court justice, who will fill the spot on the bench left vacant after the death of Antonin Scalia nearly a year ago. But it remains to be seen when the nominee, who stands to be a crucial tie-breaker in cases that would otherwise result in 4-4 splits, will actually be able to decide cases.
The last Supreme Court justice to be confirmed was Elena Kagan, an Obama nominee in 2010; it took the Democratic-majority Senate 87 days to decide on her. If today’s Republican-majority Senate were to take that long, Trump’s pick, who will almost certainly join the court’s conservative bloc, would miss the traditional window for hearing oral arguments, which ends on April 26.
While there is no law barring a justice from deciding cases in which he or she was not present for oral arguments, tradition dictates that justices don’t decide those cases.
Since Scalia’s death, the eight remaining justices have delayed scheduling oral arguments in three cases: Murr v. Wisconsin, Microsoft Corp. v. Baker, and Trinity Lutheran Church of Columbia v. Pauley. The Court agreed to take on the cases in January 2016, when it still had nine justices.
Murr v. Wisconsin involves so-called regulatory taking, when private property is taken for public use. Microsoft Corp. v. Baker involves the filing of class actions and enforcing arbitration agreements. And Trinity Lutheran Church of Columbia v. Pauley addresses whether excluding churches from secular state aid programs — like refurbishing playgrounds — violates the First Amendment.
Supreme Court experts like Steve Wermiel, an American University law professor and SCOTUSblog contributor, suspect the eight justices have delayed scheduling oral arguments in these cases in hopes that they might have a ninth colleague before they have to decide them.
“One has to assume that the court is worried about ending in 4-4 ties and is trying to avoid having that happen,” he said. “Usually these cases would have already been argued last fall and be awaiting a decision now. The fact that they didn’t schedule these cases for oral argument is extremely unusual.”
The justices are now left with some strange options for how to proceed with the three cases:
• Dismiss them entirely
• Hold oral arguments in March or April and risk the 4-4 tie
• Hold oral arguments in March or April, then re-hear oral arguments next term, when there will presumably be a ninth justice
• Schedule oral arguments in May or June — very unusual timing — before the term is over if the ninth justice is confirmed by then
• Delay oral arguments through the end of the term and announce that they will carry over to the next term
For the last option, oral arguments in the cases would happen nearly two years after the court agreed to take them — a situation Wermiel says is perhaps unprecedented and “certainly unusual.”
Trinity Lutheran Church of Columbia v. Pauley is the case constitutional lawyers are watching with particular interest. The lead attorney for the church, David A. Cortman of Alliance Defending Freedom, said Trump’s nominee could wind up being the deciding factor.
“You never know how any justice is going to rule in a particular case,” he said. “It’s our hope, being involved in the case for as long as I have, that it wouldn’t be a 4-4 tie. If it is, the new justice will play a big part.”