An Evening With A SCOTUS “Expert”

I put the word expert in quotation marks because I don’t believe anyone is an expert when it comes to the Supreme Court. On more than one occasion I have written that predicting what the Court will do is a fool’s errand. On numerous occasions I have been that fool. The closest we can come to an expert is one of the small group of journalists whose job is to follow the Court. The other night I got to hear one of them, Robert Barnes of the Washington Post, speak at Louisburg College in Louisburg, North Carolina.

Barnes spoke for about a half hour and then participated in a Q & A session for about another hour. For a nerd like me the evening was delightful. The audience was split almost equally between student and old folks. I feel into the latter category. Barnes explained the composition, function and some of the inner workings of the Court as well as touching on the challenges of covering it in the current 24/7 media environment. Overall I felt he did a job somewhere between very good and outstanding. (That is high praise from me.)

He spoke of the current situation in view of the death of Antonin Scalia, the nomination of Merrick Garland and the pending election. He not only spoke of the impact of the presidential election but the almost equally important balance of power in the Senate. One of the few things I like about the 2016 election is that the Court is more than an issue buried way down the line. Who wins the presidency and the control of the Senate will dictate a lot of what happens after November 8th!

I could not tell what Barnes’ personal politics were during the evening. That is obviously a good trait for a straight news journalist. It also plays into one of the bits of knowledge I gleaned that evening. He said the rumor of Clarence Thomas’ retirement had been debunked. He made the statement during his speech not the Q & A. That means he was not trying to fashion an answer to a question while maintaining the appearance of neutrality. The bottom line is: don’t expect Clarence Thomas to retire soon.

Justices tend to retire or die at about 80 years of age. Stephen Breyer will be 82 at the end of the next President’s first term, Anthony Kennedy 84 and Ruth Bader Ginsburg 87. That means that it is conceivable that the next President could nominate as many as four (including Scalia’s replacement) justices. The balance of philosophical power on the Court is at stake for a generation or more.

An interesting tidbit passed along during the talk was that Ginsburg has hired her clerks through June of 2018. Obviously she isn’t planning on retiring until at least after that session is over. That keeps her around for at least the Court’s next two terms.

The Court is currently operating one justice short. That makes 4-4 ties possible. In those events the ruling of the last appellate court prevails. Many cases that reach the high court are ones in which appeals courts have made conflicting rulings. If that is the case and the Court ends up in a 4-4 tie we have different and often conflicting laws in different federal appeals districts. The conventional wisdom is that the Court will try and avoid taking major cases until it is back at full strength.

The current Court breaks down with Chief Justice John Roberts, Samuel Alito and Thomas as reliable conservative votes. Kennedy will generally, but not always join them. Ginsburg and Breyer are joined by Elena Kagan and Sonia Sotomayor as reliable liberal votes. The Court is currently split 4-4 or at least 4-3-1.

What direction the Court will go is truly in the balance this fall. The good news is that this time around the Supreme Court factor is getting more than just passing lip service. The bad news is that if Democrats don’t retain the White House and gain control of the Senate we could be looking at the liberal block being in the minority for the better part of 40 years.

Today I again set out on what is still a fool’s errand, even with the help of an “expert”.

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