Politics & Government

What’s a shorthanded Supreme Court likely to do in its new term? Maybe nothing

In this Feb. 25, 2016, photo, the flag was at half-staff at the Supreme Court building in honor of the late Justice Antonin Scalia. Scalia’s absence will be felt in the new term that starts Monday.
In this Feb. 25, 2016, photo, the flag was at half-staff at the Supreme Court building in honor of the late Justice Antonin Scalia. Scalia’s absence will be felt in the new term that starts Monday. AP

A bank fraud conviction sent Southern California resident Lawrence Eugene Shaw to federal prison and his lawyer to a Supreme Court that remains depleted by politics.

Shaw’s challenge Tuesday to his 2012 conviction will help start the high court’s new term. It could be a term that ultimately stars a new justice and confirms the impact of the late Justice Antonin Scalia’s absence.

It’s a term where justices will scrutinize North Carolina’s redrawn congressional districts, Texas’ death penalty practices and Miami’s fair-housing actions.

And it’s a term that could bring some rare good fortune for the 46-year-old Shaw, now living in a Long Beach-area halfway house as he completes his prison sentence.

“Lawrence Shaw has spent a lifetime chasing expectations – his father’s, his ‘Tiger Mom’ stepmother’s, his own – and feeling like a failure at every turn,” his defense attorney wrote in a 2013 sentencing memo.

The hourlong oral argument Tuesday, however, will sidestep Shaw’s wounded psyche. Instead, it will deal with a technical question that only lawyers, inmates and potential defendants care much about: whether a conviction under the federal bank-fraud statute requires an intention to cheat a bank as well as deceive it.

Underscoring the case’s limited audience, just one outside organization, the National Association of Criminal Defense Lawyers, filed a brief giving its view of the case. By contrast, a big challenge last term to union fees charged by the California Teachers Association drew nearly 50 such friend-of-the-court briefs.

But Shaw’s low-key case also suits a court that’s still shorthanded seven months after Scalia’s death. With only eight justices, who tied 4-4 in the union fee case, the court’s 2016 term is starting out slow.

“You can see the impact of the eight-person court,” said Steven R. Shapiro, legal director for the American Civil Liberties Union. “There aren’t any high-profile, blockbuster cases on the docket.”

This probably isn’t a coincidence. With the court now evenly divided between Democratic appointees and Republican appointees, justices may be wary about deadlocking on the hottest conflicts. A 4-4 tie, like the court reached four times last year following Scalia’s death, lets a lower appellate decision stand but provides no precedent or national uniformity.

Tactically speaking, some think the court might be waiting till a ninth justice is confirmed to take up bigger cases.

“The chief (justice) might be trying to identify cases that could be 4-4, and waiting until they have the ninth justice,” said Martin S. Lederman, an associate professor at the Georgetown University Law Center, adding that “the justices are showing obvious caution.”

As of Friday, the court had agreed to hear some 40 cases. Justices will add more over the next few months, with an average of about 75 being heard in a typical term. The last oral arguments are in April, and the final decisions are done by the end of June.

By then, one way or another, the vacancy left by Scalia’s Feb. 13 death at a guest ranch in Texas is likely to have been filled. Insisting the next president must choose, Senate Republicans have refused to hold a confirmation hearing for appellate Judge Merrick Garland, whom President Barack Obama nominated March 16.

If Republicans hold firm, the nomination for the seat that Scalia held for nearly 30 years will be made by either Hillary Clinton or Donald Trump. Clinton could stick with the 63-year-old Garland or choose another, while Trump has identified 21 potential nominees, including federal appellate Judges Raymond Gruender of Missouri and Thomas Hardiman of Pennsylvania, as well as state supreme court justices including Don Willett of Texas.

“The fall, I think, will be a little different than the spring,” predicted attorney Erin Murphy, a former clerk to Chief Justice John Roberts Jr.

Some familiar fights already fill the court’s docket.

North Carolina’s periodic legislative redistricting, for instance, has repeatedly been challenged at the Supreme Court. The latest case, called McCrory v. Harris, contests, in particular, the packing of African-Americans into the 1st and 12th congressional districts.

“The resulting legislative enactment has affected North Carolina citizens’ fundamental right to vote, in violation of the Equal Protection Clause,” a lower court said, in striking down the maps.

Although the eight-member court accepted the case in June, an argument date has not yet been set. Redistricting challenges summon the kinds of explicit political consequences for which a tie vote can be particularly troublesome.

Texas death-penalty challenges, too, recur at the court.

One of this term’s versions, called Buck v. Davis, was brought on behalf of a death-row inmate from Houston who, according to the state’s brief, “executed his former girlfriend in the street outside her home while her children watched, and laughed about what he had done.”

Appellate attorneys counter that “Duane Buck is a black man whose own (trial) attorneys presented an ‘expert’ opinion that he is more likely to commit future acts of violence – and was therefore more deserving of a death sentence under Texas law – because of his race.”

The case, like many others, is procedurally complicated and need not yield a dynamite decision. In other cases, like an effort by Bank of America and Wells Fargo to stop Miami’s Fair Housing Act lawsuit alleging discriminatory lending practices, the court will confine itself to a question of “standing” to sue rather than of the lawsuit’s underlying merits.

“This is a very much holding-pattern year,” said David Cole, a professor at Georgetown University Law Center.

Michael Doyle: 202-383-6153, @MichaelDoyle10

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