The Supreme Court on Monday conveyed a judicial reality that’s different from the campaign conjurings of political candidates.
During an hourlong oral argument that never once mentioned Tuesday’s election, the justices nonetheless managed by their actions to offer some instructive lessons for voters. With 65 percent of registered voters surveyed in July calling Supreme Court appointments a “very important” issue, the insights matter.
Here, then, are five takeaways from one pre-election morning in the life of the Supreme Court.
It’s shorthanded, but adapting
Senate Republicans’ extraordinary refusal to consider the nomination of Judge Merrick Garland for the past 236 days has left the court with only eight justices. On some occasions since the death last February of Justice Antonin Scalia, that has caused the court to deadlock.
“This has been a time where there has been a lot of partisan bickering about appointments,” Justice Elena Kagan said Monday, in what might have been a two-edged observation.
But even as Republicans including Sen. Richard Burr of North Carolina have toyed with the idea of keeping the court shorthanded if Democrat Hillary Clinton becomes president, prompting outrage among some, the court keeps on keeping on.
In one small sign of adaptation, Scalia’s empty chair has been removed so there is no longer a physical reminder of the vacancy. And, in a coincidence, the case Monday dealing with government position vacancies prompted justices to reflect on how governing never stops.
“People leave, or they die, or something happens; there's a vacancy. And the main institutional imperative is keep the job being done,” Justice Stephen Breyer said. “Keep the office working.”
Blockbuster cases and hot-button issues are relatively rare
Listening to Clinton, her Republican rival, Donald Trump, and their respective supporters, one might believe that the Supreme Court is all about making history. It’s not.
While ads and campaign speeches focus on the court’s role in deciding burning issues like gun control and abortion rights, the day-to-day work of the court can be relatively routine. Monday’s sole argument, for instance, involved the meaning of the Federal Vacancies Reform Act of 1988; potentially significant, yes, but also kind of a yawner, politically and rhetorically speaking.
It’s often not about the Constitution at all
The sexiest cases, and the ones that get the most political traction, involve constitutional questions. Later this month, for instance, the court will consider a Texas death row inmate’s challenge to his sentence, based in part on the Eighth Amendment’s prohibition against cruel and unusual punishment.
So the hypo is, I'm at a restaurant, and I'm talking to my waiter, and I place three orders. I say, number 1, I'll have the house salad. Number two, I'll have the steak. Number three, I'll have the fruit cup.
Justice Elena Kagan
Often, though, justices confine themselves to the relatively more mundane and often much more technical work of statutory interpretation. That was the case Monday, as justices and the two arguing attorneys waded into the kind of statutory weeds that will never make a political ad.
“The expressio unius implication is very strong here, because if you read the statute on page 82A, (a)(1) sets out the first assistant rule,” Acting Solicitor General Ian H. Gershengorn told the justices at one characteristically technical point.
The court often doesn’t deal with cases at all
The Supreme Court sidesteps far more cases, and hence controversies, than it takes on. The 75 or so cases granted each term, which runs from October through June, are selected from 8,000 or so petitions that reach the court.
On Monday morning, for instance, before starting oral argument the court denied without comment or written explanation more than 65 petitions. No new case was granted a full hearing Monday.
The Supreme Court remains a world unto itself
While candidates try to drag the court into their political campaigns, the justices studiously maintain their decorum and relative isolation from the hurly-burly. The oral argument Monday occurred with no C-SPAN or other television network cameras present, and if anyone in the audience had tried to whip out an iPhone camera they would have been ejected and possibly arrested.
The audiotape of the oral argument won’t be released until Friday.