As Republicans’ Unprecedented Obstruction Continues, A Diminished Supreme Court Begins Its New Term With Only Eight Justices

As Republicans’ Unprecedented Obstruction Continues, A Diminished Supreme Court Begins Its New Term With Only Eight Justices

Leahy: “A Supreme Court of only eight justices is unacceptable and Americans deserve better. Americans should not accept a Senate that has done almost nothing to address the vacancy crisis in courts throughout our country.”

WASHINGTON (Tuesday, October 4, 2016) – The Supreme Court begins hearing oral arguments today without a crucial ninth justice, marking the second consecutive term that the Court has been diminished due to Republicans’ refusal to fill the vacancy that has been open since February.

Republicans’ unprecedented obstruction of Chief Judge Merrick Garland’s nomination has created uncertainty in the law, which has been harmful to businesses, law enforcement, and to families and children across the country. On Monday, the justices declined to rehear an important immigration case that affects millions of families throughout the country who have remained in legal uncertainty since June when the Court deadlocked because it lacked a critical ninth vote.

“Despite what the Republican Leader has said, there is absolutely no reason to be proud that the Supreme Court is now, for a second term, diminished,” Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) said. “A Supreme Court of only eight justices is unacceptable and Americans deserve better. Americans should not accept a Senate that has done almost nothing to address the vacancy crisis in courts throughout our country.”

He added: “Senate Republicans should be working across the aisle to ensure that our independent federal judiciary can function. Instead, Republicans have refused to do their jobs and they have left town, avoiding their responsibilities to the American people and the independent judiciary that serves them.”

The New York Times wrote on Monday that the Republicans’ refusal to take up Garland’s nomination and deny the Supreme Court the ability to fully function “is inflicting damage on the court and the country.” Last term, the Supreme Court was unable to issue a final decision on the merits in a total of seven cases. This term, the Court will hear important cases on voting rights, racial discrimination in housing, and even the fees Americans pay at the ATM. Several other issues that impact the lives of millions of Americans are also likely to come before the Court, including environmental protection and women’s health.

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What’s At Stake: The Diminished Supreme Court
Enters a New Term

Racial Discrimination in Housing

Last year, in Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project, Inc., a narrow majority of the Supreme Court held that disparate-impact claims are cognizable under the federal Fair Housing Act (FHA). Those who have long set their sights on cutting down on the Fair Housing Act, however, have not given up, and are now setting their sights on restricting who can bring suit under that law.

In this Term, the Court will look at two cases regarding the Fair Housing Act, which the Court has consolidated for briefing and argument as (Wells Fargo v. City of Miami). Both cases were brought by the City of Miami against Bank of America and Wells Fargo for alleged reverse redlining practices that caused foreclosures predominantly in neighborhoods of color. In both cases, the banks are attempting to narrow standing under the Fair Housing Act by arguing for a standard that is higher than what is required under Article III of the Constitution. The banks are also challenging the ability of cities to bring FHA claims based on the injuries they suffered resulting from the banks’ discriminatory practices, arguing that only borrowers who received toxic loans can seek relief. The argument date is set for November 8, 2016.

Environmental Protection

A challenge to the Environmental Protection Agency’s Clean Power Plan (CPP) to reduce harmful greenhouse gas emissions is set for argument before the D.C. Circuit Court of Appeals onSeptember 27, 2016. Public health advocates and environmental groups support the CPP as a critical undertaking in slowing the harmful effects of global warming and decreasing the negative health impacts of conventional energy generation pollution. Whatever the outcome in the D.C. Circuit, the case is likely to be appealed to the Supreme Court.

Women's Reproductive Health

This summer, the Court could not come to a final decision on the merits in a case involving women employees' access to birth control as part of their health insurance through their jobs. In the case, Zubik v. Burwell, religiously-affiliated non-profit employers challenged the Obama administration's administrative accommodation allowing them not to comply with the contraception mandate under the Affordable Care Act (ACA) as a violation of their religious rights. The Court sent the case back to the lower courts. After this further consideration in the lower courts, the issue is likely to come back before the Supreme Court; without a full complement of justices, the Court will be likely to be unable to resolve it again.


This summer, the eight justices deadlocked in a crucially important case challenging the Obama administration’s executive action on immigration. As a result, the deferred action policies announced by the President in 2014 that would focus enforcement resources on dangerous criminals, grow our economy, and provide certainty to immigrant families across the country, have been halted. These efforts would have brought as many as 5 million people out of the shadows, and helped immigrant families, many of which include U.S. citizen children, live productive lives free of fear. The Department of Justice has filed a petition asking the Court to rehear the case; the petition is still pending, but could be taken up by the Court this term.

In addition, the issue of immigration is back before the Supreme Court in a case that raises questions about the scope of noncitizens’ due process rights (Jennings v. Rodriguez). The Court has been asked to decide whether the Ninth Circuit Court of Appeals was correct in deciding that detaining noncitizens longer than six months is constitutionally problematic and that those detainees must be afforded the type of bond hearings allowed under the Immigration and Nationality Act (INA) every six months.

Death Penalty

This term, the eight justices will hear two cases involving the death penalty - cases that are a matter of life and death. In one, they are faced with the question of how to determine when a person is too mentally disabled to receive the death penalty (Moore v. Texas). At issue is the State of Texas’ use of a medical definition for mental disability that the medical community considers to be outdated. The Court will decide whether Texas can continue to use this outdated definition.

In the second, a death row inmate, Duane Buck, is appealing his death sentence based on ineffective assistance from his attorney who called an expert witness at trial who testified that Buck was more likely to be dangerous in the future because he is black (Buck v. Davis). After his conviction, Senator John Cornyn (R-Texas), who was then the Texas Attorney General, conceded in a different case that the government should not use experts who testify about race as a factor of future dangerousness. Despite the fact that Buck is appealing his sentence based on this discredited “expert” evidence, the Fifth Circuit Court of Appeals denied him any relief. Buck’s appeal - and life - are now before the eight justices.

Money in Politics

In 2010, a narrow majority of five Republican-appointed Supreme Court justices reversed decades of precedent and a century of practice when it issued Citizens United v. FEC, and held that corporations can spend without limit to influence elections. Since then, the same narrow majority on the Roberts Court has repeatedly struck down commonsense campaign finance regulations. The future of these regulations hangs in the balance.

The next significant campaign finance case that will likely come before the Court is Republican Party of Louisiana v. FEC, in which the constitutionality of “soft money” bans will be at issue. Soft money refers to the unlimited funds that corporations, wealthy individuals, and unions could give to political parties. McCain-Feingold had imposed a ban on political parties raising “soft money,” but with much of McCain-Feingold having been struck down by the narrow majority of the Roberts Court, the “soft money” ban has become the next target for conservative attorney James Bopp, who also litigated Citizens United and other related campaign finance cases. An incomplete Supreme Court is unlikely to be able to resolve cases like Republican Party of Louisiana and others that may come down the line.

Consumer Protection

The Court will hear two cases together (Visa v. Osborn and Visa v. Stoumbos) in which consumers seek to use federal antitrust law to hold accountable major credit card companies (Visa and Mastercard) and affiliated banks for an alleged conspiracy to keep ATM fees high. The outcome in the cases will have a real world impact on the pocketbooks of hard working families across the country.

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