U.S. Supreme Court moving ahead without a ninth Justice

12-24-16 Washington DC:

The U.S. Supreme Court on Thursday appeared to concede the practical reality that a ninth Justice will not be approved for the bench until several weeks into the new Trump administration. It did so by releasing a schedule of hearings for the February session that, once again, omits three cases that have been on hold since last January and, under normal timing, would have been heard weeks ago.

From every indication, those three cases appear to have been postponed repeatedly because the Justices have reason to think a decision in each might split the Court 4-to-4, settling nothing. Thus, those three likely will not be heard until a replacement for the late Justice Antonin Scalia has been nominated by President-elect Trump after he takes office January 20, and approved by the Senate.

The cases involve disputes over churches’ claim of an equal right to receive state government benefits, the scope of government power to take private property for public use, and a high-stakes dispute over claimed defects in Microsoft Corporation’s popular Xbox 360 game console.

The Court has only two more scheduled argument sessions in this Term — in March and April. If a Trump nominee is deeply controversial, opposition from Democrats in the Senate could prolong the process, possibly delaying further the addition of a ninth Justice. A new Justice ordinarily would not take part in decisions on cases already heard before that Justice arrived but not yet decided.

The February schedule is noteworthy for another reason: under normal circumstances, the Justices would have heard at least 10 cases during that two-week sitting, but actually will only hear seven. On only two of the five days (one normal hearing day is a legal holiday) will the Court hear two cases — the more customary number. On the other three days, only one case each day is set. ..Continued w/Schedule of Cases.. by [National Constitution Center]
Lyle Denniston