The vacancy created by Justice Antonin Scalia's death will dominate the work of the Supreme Court as it kicks off its new term Monday.
The Court will make key decisions on cases involving insider trading, intellectual property and bankruptcy law, as well as a trademark case that could have a determinative impact on whether the Washington Redskins NFL team keeps the trademark of its controversial nickname. The Court's vacancy will also be felt in a host of actions it may make with respect to other issues, ranging from transgender bathroom usage to the death penalty.
Scalia's absence from the Court has already noticeably affected the outcome of cases regarding affirmative action and public unions. For the upcoming October term, Scalia's absence looks to have caused the Supreme Court to change its behavior in terms of the cases it chose to take, said former Acting Solicitor General Neal Katyal at a recent Washington Legal Foundation event.
"I do think that these are institutionally minded judges, justices, and that's a lovely thing," Katyal said, "but I do think when they're thinking about voting, they're probably also thinking, "We owe it to the institution not to be deadlocked four to four on cases where we can avoid it and so if we're four to four, if it really looks that way, let's not take that case.""
In the absence of a replacement for Scalia, new coalitions will likely be formed as the Court prepares to adjudicate matters with just eight justices. For clues as to how the justices might act going forward, insight can be gleaned from the justices' voting relationships in the previous term.
Justice Anthony Kennedy, often a swing vote on contentious cases, agreed with Justice Elena Kagan, a member of the Court's left-leaning bloc, more frequently than he did with any other member of the Court, an analysis of the October 2015 term by SCOTUSblog revealed. And Chief Justice John Roberts agreed with Kagan more frequently than he did with either Justice Samuel Alito or Justice Clarence Thomas, the Court's remaining conservatives, during the same time span according to the SCOTUSblog analysis. If Roberts intends to preserve the Court's function in spite of congressional intransigence on Judge Merrick Garland's nomination to replace Scalia, he may foster the development of a centrist coalition.
Some Court-watchers are not persuaded that a vacancy on the Supreme Court necessarily means there will be many problems headed into the October term. Suggestions that the Court cannot function with eight justices or that an eight-justice Court damages its prestige are "a bit overblown," said Nicholas Quinn Rosenkranz, a Constitutional law professor at Georgetown University, at a Federalist Society gathering.
"It's important to remember that the Court functions with eight justices often, when there are recusals and things," Rosenkranz said at the Federalist Society event. "It's also important to remember that the Judiciary Act of 1789 created a Supreme Court of six, so fewer than eight and also an even number, and the framers thought that was just fine."
He added, "So I'm not actually that worried that there's eight justices for this little moment in time and of course I'd like to see a ninth justice confirmed in due time, but I don't think that this is any sort of cause for alarm in that sense. I think the Court will survive this moment."
Others foresee far more problems with just eight justices. SCOTUSblog's Tom Goldstein told the same Federalist Society audience that having six justices a couple of hundred years ago was agreed to be a "really stupid thing."
"Things operate much better when the Court has its full complement of justices in whatever circumstances possible that aren't required by recusal," he said.
When, or perhaps whether, the Court gets a replacement for Scalia undoubtedly hinges on the outcome of the presidential election. In the event of a Hillary Clinton victory, Goldstein told the Federalist Society crowd he would be surprised if Clinton's Republican opponents in Congress did not lead a lame-duck confirmation for fear of a more progressive Court nominee in 2017.
Clinton has been circumspect about whether she would seek Garland's confirmation or select someone else entirely if elected. Progressives have urged the Democratic nominee to pick someone with a political pedigree, in hopes of undoing the Citizens United decision that removed barriers to political spending.
"If I have the opportunity to make any Supreme Court appointments, I'm going to look broadly and widely for people who represent the diversity of our country and bring some common sense, real-world experience," Clinton told the "Tom Joyner Morning Show" in September.
Unlike Clinton, GOP nominee Donald Trump has released multiple lists of people he would consider for the Supreme Court vacancy. The list was largely understood by political observers as an attempt to placate anti-Trump Republicans and conservatives who are skeptical of Trump. Whether Trump would stick to his list, which grew in September to include Utah Sen. Mike Lee among several others, if elected remains unknowable.
Whoever wins in November may not only resolve who will nominate Scalia's replacement, but has the potential to put multiple additional justices on the Court in the next four years. At the end of the next president's first term three justices would be older than the life expectancy of someone born in the United States — Kennedy and Thomas would be older than age 82, while Justice Ruth Bader Ginsburg would be 87 years old.
The Court's coming October term may be tumultuous because of events outside of its control more than anything occurring inside its chambers.