4 Scenarios for the Cases Kavanaugh Missed

Justice Brett Kavanaugh was sworn in and joined the Supreme Court on Oct. 6, after the court had completed the first week of its 2018-2019 term.

By that time, the court had already heard arguments in six cases with only eight justices. These cases dealt with age discrimination in employment, Congress delegating lawmaking authority to the Attorney General, the potential execution of a criminal defendant with dementia, an arbitration dispute, and two important property rights cases.

Although only 1 in 4 Supreme Court cases is decided by a single vote, at least one of these six cases could potentially result in a 4-4 ruling.

The most likely case to see a 4-4 decision is Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which challenges a critical habitat designation under the Endangered Species Act. The government argued that land can be considered “critical habitat” even if the endangered species in question can’t currently survive on it and hasn’t lived there in more than half a century.

At oral argument, the traditionally conservative members showed a great deal of skepticism for the government’s position, while the more liberal wing seemed more willing to defer to the federal government.

Here are four potential outcomes for a close case heard by an eight-member Supreme Court.

1. 4-4 Split, Affirming the Lower Court’s Ruling

If the eight-member court is at loggerheads, the justices may end up ruling 4-4. That means the lower court’s ruling stands.

This happened in four cases in the 2015-2016 term following the sudden death of Justice Antonin Scalia. One of those cases, Friedrichs v. California Teachers Association, involved whether public employees who opt-out of union membership could be forced to subsidize the costs of collective bargaining.

But a similar case quickly made its way to the court once there were nine members, and last term, the court ruled in favor of the employees in Janus v. AFSCME.

2. Try to Reach a Narrow Agreement

The eight-member court could try to reach a narrow ruling that at least five members would agree to join. Chief Justice John Roberts is known for trying to seek compromises and promote unanimous rulings whenever possible, so this may be one path forward.

If court takes this course, it’s unlikely the ruling will provide much guidance beyond this particular case.

3. Schedule It for Reargument

Another option would be for the court to schedule the case for reargument.

There are plenty of examples of this happening when other members ascended to the High Court. For example, the court reheard four cases when Justice Anthony Kennedy joined the court in February 1988, two cases when Justice Clarence Thomas was confirmed in late October 1991, three cases after Justice Samuel Alito joined the court in January 2006, and two cases after Justice Neil Gorsuch was confirmed in April 2017.

In most of these instances, the court ultimately ruled 5-4 in the reargued case.

(Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan were all confirmed during the court’s summer recess, so there were no oral arguments happening at that time.)

4. Let Kavanaugh Review the Argument Transcript and Vote

A fourth (and more controversial) option would be to let Kavanaugh review the argument transcript and vote in the case. Supreme Court rules don’t actually preclude Kavanaugh from participating this way, but it’s highly unlikely that he will cast a vote in any cases argued before he joined the court.

While it’s a rare occurrence, there have been some instances in which a justice participated in a case despite missing the oral argument. For example, when Chief Justice William Rehnquist was battling thyroid cancer, he missed several arguments throughout the 2004-2005 term. He ended up voting in many of those cases and wrote the majority opinion in four of them.

Of course, Rehnquist was already a member of the court when he missed oral arguments, whereas Kavanaugh had not yet been confirmed.

The justices met in conference on Friday, Oct. 12 to cast initial votes and divvy up the majority opinions for the cases argued in the first two weeks of October. So perhaps we will soon learn the fate of Weyerhaeuser and any other close case argued before Kavanaugh took his seat on the Supreme Court.

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