Recent U.S. Supreme Court Issues: Eight Member Dynamics, EPA Water Permitting

Adam Liptak reported in today’s New York Times that, “It was February, and Justice Antonin Scalia had just died. Responding to a question about how the Supreme Court would cope with just eight members, Justice Samuel A. Alito Jr. was sanguine. ‘We will deal with it,’ he said.

“Now it is April, and it is possible to start to assess how a short-handed court is dealing with its work.”

The article noted that, “It has started to deadlock in closely divided cases. That happened twice last month, in a minor case on bank guarantees and a major one on public unions.

“‘With almost 50 cases still on the docket for the term, the Supreme Court could set a record for most tie votes,’ said Justin Pidot, a law professor at the University of Denver and the author of a study of Supreme Court deadlocks to be published in the Minnesota Law Review. ‘No term since 1990 has included more than two tie votes, a benchmark the court has now hit in a single week.’

“Such ties give rise to a judicial anticlimax. The court issues an unsigned opinion containing a single sentence: ‘The judgment is affirmed by an equally divided court.'”

In a separate article in today’s Times, Mr. Liptak reported that, “The Supreme Court, facing the prospect of an extended stretch with an eight-member bench, is ‘working really hard’ to reach consensus and avoid deadlocks, Justice Elena Kagan said on Monday…’All of us are working hard to reach agreement,’ she told an audience at New York University’s law school. That was true when the court had nine members, she said, but ‘we’re especially concerned about that now.'”

With respect to the Senate considering Merrick Garland, President Obama’s nominee to replace Justice Scalia, Michael D. Shear reported in today’s New York Times that, “Senator Charles E. Grassley, the chairman of the Judiciary Committee, on Monday invited President Obama’s Supreme Court nominee to breakfast to explain, face to face, why Republicans have no intention of holding hearings on his appointment.”

The Des Moines Register editorial board indicated today that, “Americans might need to get used to deadlocks, thanks to Sen. Chuck Grassley. The head of the Senate Judiciary Committee seems just fine with stalemate.”

The Register followed with strong language noting that, “But refusing to hold hearings on Garland is pure partisanship — and simple stubbornness.

“Grassley won’t give Garland a chance, to even let him in the game.

“That’s unsatisfying. And un-American.”

Meanwhile, The Wall Street Journal editorial board commented on a recent case that was heard by the U.S. Supreme Court regarding water issues (“Supreme Court Water Fight“).

The Journal stated that, “The Obama Administration has pushed the legal boundaries of executive action and dared courts to stop it. The Supreme Court seemed inclined to do precisely that last week when the Justices heard arguments on whether decisions on land use can be immediately challenged in federal court.

“The case concerns the Hawkes Company, which harvests peat for golf courses. When the company wanted to begin a peat-mining operation in Minnesota, the government got in the way. The U.S. Army Corps of Engineers issued a ‘jurisdictional determination’ that the land contains waters of the United States and is thus protected under the Clean Water Act.

“Though the property is some 120 miles from the nearest major navigable waterway, the Army Corps said the land contains wetlands and is adjacent to other waters that ultimately connect to the river. With that determination, certain uses of the lands required the company to apply for a permit, which can take years.”

Yesterday’s opinion item added that, “Hawkes challenged the decision in court, but the Army Corps argues that the company can’t do so until it has run the Corps’s permitting gauntlet. (United States Army Corps of Engineers v. Hawkes Company) Translation: You have to go through the permitting process before you can ask a court whether you need to go through the permitting process.

“Even liberal Justices seemed skeptical. Justice Ruth Bader Ginsburg called the permitting ‘very arduous and very expensive.'”

In conclusion, the Journal editorial stated that, “The death of Antonin Scalia has raised doubts about the Court’s willingness to challenge executive abuses. Hawkes is a chance for even the liberals to point out that willful agencies can’t deny citizens their day in court.”

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