Supreme Court Set for Momentous New Term
Trinity College professor Kevin McMahon explains how the new partisan balance of the court and big issues on the agenda are likely to make this a very important term
SHARMINI PERIES: It’s The Real News Network. I’m Sharmini Peries coming to you from Baltimore. This week, the U.S. Supreme Court is beginning a new term with major cases on its docket. This is the first time since Justice Scalia’s death in February of 2016 that the court’s had its full complement of justices. This is also the first time for Trump’s appointee, Neil Gorsuch. Justice Ruth Bader Ginsburg referred to the upcoming decision as momentous.
The cases before the Supreme Court are issues affecting political redistricting– –some call it gerrymandering. Also, whether businesses have the right to discriminate on religious grounds and whether public sector workers have the right to so-called a closed shop, and whether people have a right to privacy with regard to their cellphone data.
Joining me now to discuss the upcoming Supreme Court term and the decisions before them is Kevin McMahon. Kevin is a political science professor at Trinity College. He has written extensively on the history of the Supreme Court. Thanks for joining us today professor.
KEVIN McMAHON: Thank you. It’s good to be here.
SHARMINI PERIES: Professor, let’s start off with some of the items that I listed off the top. Now, any decision before the Supreme Court is extremely importantly. It affects all of us. Give us a sense of what the issues are and how you think this Supreme Court will consider them.
KEVIN McMAHON: I guess just to start off, if we think about the justices and where they stand, we now have five of the justices have been appointed by a Republican president. Four have been appointed by Democratic presidents. This past election was very significant in the sense that you had the death of Justice Scalia, who was by quantitative measure the second most conservative justice on the court next to Justice Thomas being the most conservative.
If Hillary Clinton had won, or if Barack Obama’s nominee Merrick Garland had been confirmed by the Senate, you would have had a liberal majority, but as we know, Donald Trump won the presidency. He appointed Neil Gorsuch, with the intention according to Mr. Trump of finding somebody very similar to Scalia in ideological outlook. If that’s right and so far indications are that Gorsuch will be very much like Scalia, this term on many of the issues that are before it and that the docket is not full.
There will be other major cases that will be announced later in the year and at the beginning of next year. You will likely have Anthony Kennedy as the so-called swing justice, meaning the justice that most often sides with either the four liberals or the four conservatives. Anthony Kennedy will be making many of the significant decisions if there are 5-4 decisions.
SHARMINI PERIES: It was somewhat rumored that Anthony Kennedy might also be resigning or stepping down this term, creating another spot. Is there any truth to that?
KEVIN McMAHON: No. Obviously only he knows the answer to that question. There is always speculation. Particularly, we tend to get departures early in a presidential term. There’s a new election, there’s legitimacy based on the election results. For example, we got one departure in 2009. There was another departure in 2010. Two departures in 2005, one based on a death, but nevertheless. In 1993, 1981, so they tend to occur soon into a president’s term more than other times of the president’s term with some recurrence that tends to fit within a cycle if you will, but we don’t know the answer.
Anthony Kennedy was appointed by Ronald Reagan. He has been on the court the longest of all the justices, but he … he is in a key position. Like I said earlier, he’s the swing justice. He will be the key decision maker on many of these cases if it comes down to those as expected, if the justices vote as expected. One would have to ask the question, does he want to relinquish this impact that he’s likely to have on the law if he stays on the bench?
SHARMINI PERIES: Why is it that some justices like Justice Kennedy has more influence over the court than others? You would expect the Supreme Court to be one of those very democratic institutions, however, there is such a weight attributed to the people that have greater seniority. Why is that?
KEVIN McMAHON: In this case it’s not his seniority. Seniority does play a role simply in who writes the decisions. The rules are, if the chief justice is in the majority, he gets to write the decision or he gets to choose which Justice will write the decision. However, if the chief justice is in the minority, that power falls to the most senior justice. Kennedy’s power really stems from the fact that he is the swing justice.
He’s the justice who’s in the ideological middle of the court. Most likely when it’s a 5-4 case, he’s the fifth justice either joining with the liberals or the fifth justice joining with the conservatives. He’s the one that liberals are often trying to please when cases are being argued, and also who conservatives are trying to please when cases are being argued.
If he were to leave the court and President Trump were to nominate another justice, the ideological middle would shift to Chief Justice Roberts and he would assume that role simply because of where he sits or where he positions himself ideologically.
SHARMINI PERIES: All right. In the intro I indicated that the cases before the court this term is momentous. Why is that? Isn’t every case before the Supreme Court momentous?
KEVIN McMAHON: Not necessarily. The court usually has about 80 decisions a year that it releases. Many of those can be minor cases of statutory interpretation, you know, what did Congress say? What did Congress mean when a certain piece of legislation was passed? There’s a conflict in the lower courts, and what the Supreme Court is trying to do there is really resolve those conflicts so when future similar disputes are raised, the lower court judges know what the Supreme Court was thinking.
Why this term is particularly momentous in part, because Scalia’s death created a 4-4 court with regards to four conservatives and four liberals. Many of the cases were either decided on technical grounds in a limited way, or they were pushed off until the court had its full nine justices. That’s one of the main reasons. And sometimes, there’s just a randomness. When particularly pressing issues come before the court, some years are gonna have more significant terms, other years less significant. This year, because of Scalia’s longtime vacancy, and because new issues are propping up on the agenda, this is likely to be a very important term.
SHARMINI PERIES: Professor, you’ve studied the history of the Supreme Court. Give us a brief summary of why it is so political. I mean, the appointees, whether it is the Democratic Party or the Republican Party, there is expectation that these justices should cater to the party interests. In fact, you expect a Supreme Court to adhere to the law, to the constitution and so forth. Why is it so partisan?
KEVIN McMAHON: Well, it’s become increasingly partisan. When Anthony Kennedy was appointed to the court in 1988, I forget the exact vote, but something like 97 to 0 was the Senate vote. Ruth Bader Ginsburg, I think only three senators voted against Ginsburg. Since 2005 with Bush’s appointment of Roberts, but more significantly Alito, the Kagan and Sotomayor appointments and then the Gorsuch appointment. It’s basically about the Senate, really. It’s about that in order to be seen as a legitimate liberal Democrat on the Democratic side or a conservative on the Republican side, you just see an instant group of senators who will oppose any nominee appointed by a president from the opposing party.
Gorsuch is striking. Gorsuch is the first nominee in the history of the Supreme Court, in the history of presidential appointments to the court who has been appointed by a minority president, meaning a president who did not win the popular vote. Gorsuch was also confirmed by senators who did not win the popular vote in their most recent elections, meaning that more individuals supported the senators opposing. More voters supported the senators opposing Gorsuch than those supporting him.
SHARMINI PERIES: All right professor. I thank you so much for joining us today and we hope to have you back here on The Real News Network.
KEVIN McMAHON: Right, nice being here.
SHARMINI PERIES: And thank you for joining us here on The Real News Network.