The U.S. Supreme Court begins its new term on Monday in an awkward position, down one justice as the fierce fight unfolds in the Senate over confirmation of President Donald Trump’s nomination of Brett Kavanaugh to a lifetime job as a justice.
With eight justices rather than the usual nine, the court was set to hear arguments in two cases as it opens its nine-month term, according to tradition, on the first Monday of October.
Justice Anthony Kennedy retired effective in July, leaving the court ideologically deadlocked with four conservatives and four liberals on the bench awaiting the outcome of the Kavanaugh battle. Trump nominated the conservative federal appeals court judge in July but his confirmation in the Senate remained in doubt over sexual misconduct allegations that he denies.
Unlike prior years, when a series of major cases awaited the justices, there are no blockbusters yet on their calendar. Their first argument on Monday is a property rights case involving protected habitat for a warty amphibian known as the dusky gopher frog.
The court’s previous term, which ended in June, included more 5-4 decisions than usual, with conservatives in the majority. These rulings included approving Trump’s travel ban on people from several Muslim-majority nations, prohibiting a type of regulation of anti-abortion clinics, and banning certain public-sector union fees.
“After a term of challenging cases and issues, and an unusually high number of 5-4 decisions, as I see it, we needed our summer break,” Justice Ruth Bader Ginsburg joked to an audience last week.
For the current term that runs through next June, the court does have some important cases, though none yet of the magnitude of the biggest from the previous term.
One case over whether a state and the federal government can each prosecute a person for the same crime could impact Trump’s willingness to pardon people like Paul Manafort. Trump’s former campaign chairman was convicted in August of financial crimes by a jury in Virginia and then pleaded guilty in September to reduced charges in Washington brought by Special Counsel Robert Mueller as part of an investigation into Russia’s role in the 2016 election.
Other cases include whether the U.S. attorney general has too much power in determining to whom the federal sex offender registry applies, and whether a state can execute a convicted murderer who, after a series of strokes, forgot the crime.
A number of hot-button issues may still be teed up for the justices this term, including disputes the court did not resolve last term over the constitutionality of an electoral map-drawing practice called partisan gerrymandering and whether people who run businesses can refuse service to gay couples because of religious objections to same-sex marriage.
“The real meat of the coming term is what’s in the pipeline,” Trump administration Solicitor General Noel Francisco said at an event organized by the Federalist Society, a conservative lawyers’ group.
Major cases making their way up from lower courts include disputes over various abortion restrictions in Republican-led states, whether a federal law against sex discrimination also prohibits discrimination based on sexual orientation, and Trump’s plan to restrict transgender troops in the military.
Even if only some of those issues come before the justices “we might be talking about this term as one of those blockbuster years that is comparable to what we saw last year,” Francisco said.