Scalia’s loss raises questions for Supreme Court
Washington — Two months, 31 arguments and 18 decisions since the death of Justice Antonin Scalia, is the Supreme Court hopelessly deadlocked or coping as a party of eight?
The answer varies with the issue, but arguments last week in the corruption case of former Virginia Gov. Bob McDonnell show there are high-profile cases on which justices from the left and the right agree more often than they don’t.
There also is some indication, hazy though it may be, that the court is trying to avoid division in an era of stark political partisanship and during a rollicking presidential campaign.
“The court prides itself appropriately as being an institution that works,” said Washington lawyer Andy Pincus, who argues regularly at the Supreme Court.
If the court can demonstrate an ability to get its work done, that could reinforce Republican opposition to confirming federal Judge Merrick Garland, President Barack Obama’s nominee to replace Scalia, who died in February.
At the same time, the court has split 4-4 in two cases and part of a third, and the justices could end up similarly divided over immigration, birth control and a couple of other issues. Scalia’s death has deprived the court’s conservatives of a fifth, majority-making vote on some high-profile issues.
In McDonnell’s appeal of his corruption convictions, however, liberal and conservative justices seemed to share a deep skepticism of the government’s case. They strongly suggested that the court eventually will set aside his criminal conviction.
Liberal Justice Stephen Breyer, conservative Chief Justice John Roberts and the justice between them on the ideological spectrum, Anthony Kennedy, all sharply questioned the government’s case against McDonnell. The onetime rising Republican star was convicted of accepting, along with his wife, Maureen, more than $165,000 in gifts and loans from a wealthy businessman in exchange for promoting a dietary supplement.
Breyer said he worried about putting too much power in the hands of a criminal prosecutor, “who is virtually uncontrollable.” Roberts said perhaps the court should strike at the root of the problem and declare unconstitutional a key federal bribery law.
The justices long have expressed their discomfort about overzealous prosecutors and their pursuit of corruption charges, previously limiting the very law Roberts speculated about Wednesday. Scalia was a loud voice against the “honest services” fraud statue, but he was not alone.
If corruption prosecutions are one area in which ideology seems less important, concern about digital-age privacy is another. Two years ago, the court unanimously ruled for a suspected gang member after police searched his smartphone without a warrant.
On both topics, the fear of unbridled government power worries liberals and conservatives alike.
In two more cases, the court unanimously turned away Republican- and conservative-led voting rights challenges in Arizona and Texas. Both cases still might have come out the same way — with the challengers losing — had Scalia been on the court.
But John Elwood, a lawyer who writes a popular feature about the court’s caseload for Scotusblog, said he thinks the court resolved the cases more narrowly after Scalia’s death, perhaps to avoid division.
The court doesn’t just miss Scalia’s vote, but his distinctive voice as well. The biggest difference at the court since Scalia’s death has been the way the justices relate to each other during arguments that once were filled with Scalia’s pointed barbs and wry wit.
In some arguments, Justice Sonia Sotomayor has adopted a more aggressive tone, even challenging Roberts or interrupting his line of questioning. During arguments last month over the Obama health care law’s contraception mandate, Roberts suggested that women who work at faith-based groups that object to birth control coverage could instead apply for it through the federal insurance exchanges.
“That’s a falsehood,” Sotomayor said before Solicitor General Donald Verrilli Jr. could respond.
In a second case involving Puerto Rico’s financial plight, Sotomayor essentially answered a question Roberts had asked lawyer Chris Landau.
The exchange prompted Roberts to say: “You came up with a very good answer, Mr. Landau, to my question.”
In a case involving the federal Clean Water Act, Elwood said Kennedy seemed to fill the role once played by Scalia as the law’s chief skeptic.
In last week’s McDonnell case, Kennedy offered a tart response to Justice Department lawyer Michael Dreeben’s assertion that it would be stunning if the court were to strike down long-standing anti-bribery and anti-corruption laws.
“Would it be absolutely stunning to say that the government has given us no workable standard?” Kennedy asked.
In some ways, the justices could be trying on roles as they adjust to life without Scalia. There are fewer big cases in the pipeline for next term, almost certainly a product of the court’s desire to avoid controversial topics until the bench is once again full.
The eight-justice court probably will be around for a while — at least through the presidential election in November and possibly some months beyond that.