WASHINGTON: The US Supreme Court has a clutch of major decisions coming up on hot-button issues like immigration, birth control and affirmative action — but with only eight justices instead of nine, those rulings could be more complicated than ever.

A political fight is raging between Democratic outgoing President Barack Obama and the Republican-controlled senate over filling the vacancy created by the death of conservative justice Antonin Scalia in February.

Obama has nominated Merrick Garland, currently the chief judge on a key federal appellate court in Washington, to fill the spot. Many Republicans have refused to even meet him, and say no one should be considered until after the presidential election in November.

Under the US constitution, the president appoints nominees to the Supreme Court and they are approved or rejected by the senate.

In scenarios like this, if a Supreme Court vote ends up in a 4-4 tie, the decision confirms the lower court ruling which the high court has been asked to consider.

But in a deadlock, no legal precedent is established and the underlying issue remains unresolved, meaning the high court’s influence is curtailed.

Cases overseen by eight rather than nine judges raise “the spectre that this term at the court could be replete with cases ending in four justices voting one way and four justices voting the other way” on very sensitive issues, said Justin Pidot of the University of Denver’s Sturm College of Law.

“Whatever the cause, should the court be unable to resolve some of the important and high-profile cases on its docket, that will surely further dampen public confidence in the institution,” Pidot said in a study on tie votes.

That confidence is already at its lowest level in decades after highly divisive decisions, such as one legalising gay marriage nationwide in 2015 or one that eliminated limits on corporate contributions to election campaigns, in 2010.

#WeNeedNine

The political leaning of the court — conservative until Scalia died, but now divided equally between liberals and conservatives — is at stake.

Tensions mounted this week as the senate returned to work following an Easter recess.

Garland — chief justice of the US Court of Appeals for the District of Columbia Circuit — seems to enjoy a favourable consensus among the two American political parties and received wide backing when he was nominated for his current job.

But only a handful of Republican senators have agreed to even sit down with him, and Majority Leader Mitch McConnell is digging in his heels, insisting his nomination will not be brought up for consideration.

“I think it is safe to say there will not be hearings or votes,” McConnell said on Tuesday.

Obama says it is his right and duty to name a nominee — and it would appear the American public is on his side. Polls show two-thirds of Americans back Obama on this issue.

Social media have lit up with hashtags such as #DoYourJob and #WeNeedNine.

Over the past three weeks, more than 400 newspaper editorials have hammered home Obama’s message: it is his constitutional right to nominate a judge and the senate’s duty to hold hearings on approving or rejecting him or her.

Obama heads back to law school

Obama plans to travel on Thursday to the University of Chicago, where he once taught constitutional law, to highlight the inaction of senate Republicans.

For the time being, only a few cracks have appeared in the Republican wall of refusal, with a few moderate Republicans receiving Garland.

“These courtesy visits are an important step in the senate confirmation process and represent opportunities for senators to have thoughtful, substantive conversations with Chief Judge Garland,” the White House said.

The stalemate could last a year or more.

And with so many variables up in the air, the Republicans could ultimately come out on the losing end: right now, for the first time since the 1970s, the court no longer has a conservative majority.

The new balance was seen clearly last week when the court deadlocked 4-4 on a case involving public sector unions, effectively affirming their right to collect mandatory fees from non-members in states that allow the practice.

When the case was heard in January — with Scalia still on the bench — it looked like a win for the conservatives challenging the law. Without him, unions scored a victory, reflecting the court’s changing dynamics.

“Tie votes are, in effect, an admission that the justices have failed to fulfil their job responsibilities because they could find no manner of resolving a case that was acceptable to a majority of them,” Pidot said.

In the end, Republicans may regret not approving the centrist judge Garland.

If either Hillary Clinton or Bernie Sanders — both Democrats — is elected president and the Democrats win control of the senate, the future president will be in a position to nominate a judge who is much more progressive, tilting the Supreme Court’s historic balance to the left.—AFP

Published in Dawn, April 7th, 2016