When the Supreme Court goes to work on Tuesday, it will be back to its full nine-member strength. Justice Brett Kavanaugh was confirmed on Saturday and sworn in the same day.
But for the first week of the Term, the Court had only eight members, and aspects of its new dynamics were on display. In a piece for NPR, Nina Totenberg considers the consequences of an eight-justice Court for the October term. When the Court splits 4-4, the lower court ruling stands. In Weyerhaeuser Company v. United States Fish and Wildlife Service, the Endangered Species Act case discussed here, Robert Barnes of the the Washington Post observes that the dusky gopher frog has managed to “divide the understaffed Supreme Court into familiar camps and raised the possibility that the first case of the 2018 term might end in a tie.” The justices do have a way out, however. They can order the case re-argued with Justice Kavanaugh sitting.
On Tuesday, the Court heard arguments in Madison v. Alabama, discussed here, which addresses whether the Eighth Amendment and prior decisions in Ford v. Wainwright and Panetti v. Quarterman bar a state from executing a prisoner whose mental disability leaves him with no memory of his commission of the capital offense. Bryan A. Stevenson argued on behalf of Vernon Madison, an Alabama inmate who has been on death row for more than 30 years and cannot remember the crime for which he was sentenced as a result of several strokes he has suffered and dementia. For Slate, Mark Joseph Stern considers whether, in Justice Anthony Kennedy’s absence, John Roberts may be the swing vote in Madison, opining that “Roberts appeared eager to broker a compromise that would spare Madison’s life by conceding that dmentia may exempt him from the death penalty. The case provides an early glimpse of the post-Kennedy court—with the chief justice embracing his role as the new swing vote.”
The Justices have clearly been aware of the spotlight on the Court throughout the Kavanagugh nomination. On Thursday, as senators reviewed the results of an FBI investigation into allegations of sexual assault against Kavanaugh, Justice Breyer spoke at the Atlantic Festival, intentionally avoiding the subject, stating: “I’m obviously going to stay as far away as I can from any particular controversy that’s going on.” Instead, he discussed literature and the importance of the humanities in understanding other people, as Andrew Hamm of SCOTUSBlog describes here.
Written by ISCOTUS Fellow Elisabeth Heiber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by Carolyn Shapiro, ISCOTUS Co-Director and Chicago-Kent faculty member.