WASHINGTON — For one day this week, it looked like the Supreme Court might take center stage on the political scene.
In an interview on Sept. 15, Hillary Clinton avoided answering Roland Martin's question about whether she would renominate President Obama's Supreme Court nominee, Judge Merrick Garland, if she wins the presidency and takes office with the current vacancy remaining.
The same morning of that interview, the Huffington Post published a story claiming that Peter Thiel — the tech entrepreneur and Trump backer who supported Hulk Hogan’s lawsuit against Gawker — has been telling friends that Donald Trump had told him that he would be a nominee for the Supreme Court in a Trump administration.
In the Senate, the chair of the Judiciary Committee's subcommittee on the Constitution, Sen. John Cornyn, talked about a new set of lower court judicial nominees backed by Texas' two Republican senators, saying that he hopes to see their "confirmations after the election." The White House — regularly trying to push the story of Republican inaction on judicial nominees in the press, especially in the months since Obama nominated Garland for the high court — used Cornyn's comments to claim hypocrisy.
For a flickering moment, the Supreme Court seemed to be getting the attention the White House and its allies had been hoping it would be getting all summer. As was quickly seen, though, it’s difficult to keep the spotlight on the Supreme Court. Hillary Clinton’s pneumonia diagnosis — and questions about when she disclosed it — dominated the earlier part of the week. Then, Trump gave the campaign news cycle another twist, refusing to tell the Washington Post's Robert Costa whether he believed President Obama was born in the US and setting off the day of nonstop press coverage that followed — ending with Trump's now-infamous campaign event at his new DC hotel.
And the Supreme Court, once again, fell to the wayside.
So, when and why will people actually be paying attention to the Supreme Court?
October 3: The Supreme Court comes back to begin its new term on the first Monday of October. On that day, the justices will be announcing orders relating to the many petitions submitted to the high court over the course of the summer. The next day, Oct. 4, the court will hear its first new cases of the term. Because of the continued vacancy after the death of Antonin Scalia — and because the justices have not yet agreed to hear many cases, let alone any of the type of high-profile cases the court has heard in recent terms — expect a lot of the coverage to focus on "the eight-person court" and how that is creating an unusual term.
Two cases addressing racial bias in the justice system will be heard in the weeks before the election, both of which could draw some attention to the court, but there are no big blockbuster cases expected to garner nationwide attention set for argument before the election.
The Debates: As the presidential debates get under way, expect the topic to come up at some point. Whether Trump’s list of potential justices comes up or whether issues likely to come before the court are raised or whether a more broad question about the fights over judicial nominees — like Garland — is posed to Clinton and Trump, it is likely that Supreme Court will be a topic of discussion in at least one of the debates. Whether that leads to any further attention on the high court, of course, depends on the questions asked and answers given.
November 8: If the presidential election is close, the Supreme Court — as in 2000 — quickly could become the center of the nation's attention. Given one recent election dispute out of North Carolina, though, the current makeup of the court raises the very real possibility of a 4-4 split along ideological lines. A tie vote of the court leaves the lower court's decision in place — meaning that, if the court is split on those lines in such a scenario, a federal appeals court would, effectively, decide the election for the nation. (That reality already has given significant power to the federal appeals court in setting the law for the states in their circuits this election cycle.)
One other wrinkle to consider, though, is that, while a 4-4 tie leaves a lower court decision in place, it only takes four justices for the Supreme Court to accept a case — meaning that, despite the potential split, an issue could nonetheless find its way in front of the justices.
The Lame-Duck Senate: If the presidential election is resolved on Election Day, though, the immediate question, if Clinton wins, will be whether the Senate will then act on Obama's nomination of Garland for the Supreme Court vacancy. There already have been signs from the Republicans that — especially if the GOP also loses control of the Senate — they would be willing to move forward with Garland's nomination to prevent a potentially more liberal and younger nominee from being put forward by Clinton in the new year.
If Trump wins and the Republicans keep the Senate, of course, the Garland nomination is done for and the Supreme Court will be one of several open questions left for the new administration.
January 3: If Garland's nomination doesn't move forward by the new year, Obama will face one last question — particularly if the Democrats retake the Senate this November. On Jan. 3 — with 17 days left in his administration — the new Senate will take office: Will Obama re-nominate Garland and ask the new Senate to hold immediate hearings and a vote on his nominee? If — in a highly unlikely scenario — Trump wins and the Democrats still retake the Senate, this would be Democrats' last chance at stopping Trump from getting to nominate Scalia's replacement.
January 20: If Garland is not confirmed during Obama’s presidency, the new president will face a situation that has not happened since the invention of the car and radio: beginning a presidency with a Supreme Court vacancy.
The last president to enter office with a vacancy on the court was President Chester Arthur in 1881 — and he had previously been vice president, taking office after the assassination of James Garfield, so even that is not a completely comparable situation. (More recently, in 1969, President Nixon took office knowing that he would be making a nomination to the Supreme Court because the Senate had refused to confirm President Johnson’s pick to replace Earl Warren as chief justice, but Warren had remained in office until his successor — eventually, Nixon’s nominee, Warren Burger — was confirmed.)
The timing of such a nomination, due to its unprecedented nature in the modern era, would be unpredictable. Generally, presidents take a few months to name their for nominees for lower court vacancies that were in existence when they took office. President George W. Bush named his first four lower court nominees in May of 2001; Obama named his first nominee in mid-March of 2009, two more in April, and four more in June. The delay, generally, is because presidents also are focused immediately on selecting the key nominees and appointees for their new administration; judges generally wait a few months. Here, the scenario could be seen differently, however, and a Supreme Court nominee could be part of the launch of the new administration or, at the least, a key piece of the new president's first 100 days. (Nixon, for his part, did no such thing, nominating Burger on May 21, 1969, after taking office on Jan. 20 of that year.)
Once a nominee is named, under this scenario, the attention will turn to the new Senate and a whole new set of questions will become relevant.
What party is in control of the Senate, and are they of the same party as the president? If Republicans control the Senate and Clinton is president, will the election have made a difference? Will they consider her nominee? If Trump is president and Democrats control the Senate, will they take the Republicans' move against Garland a step further and simply refuse to consider his nominee if they consider the person unacceptable? Finally, if the president and Senate majority are of the same party but the Senate still can't get through a nominee due to a filibuster led by the party out of control, will the Senate take the step presaged by Sen. Lindsey Graham earlier this year and eliminate the filibuster for Supreme Court nominees?
There are, in short, a lot of unknowns about when the Supreme Court will return to the center of national discussion, but there are many potential moments when that could happen — and when the current vacancy might itself return to the spotlight.
At some point, though, it is likely that Garland or another nominee will be confirmed to the Supreme Court and the court will move forward with nine justices.
Until there is another vacancy.