The Return of an Eight-Justice Supreme CourtOn July 31, the day on which Justice Anthony Kennedy's retirement became effective, a civil rights lawyer
tweeted: "Now would be a great time for lower courts to issue injunctions."
With Kennedy's retirement, the Supreme Court is back to an eight-justice court for an indefinite period as senators begin their review of the nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit.
The tweet from Joshua Block, however, was a sign of what may be heading to the court between now and the likely confirmation of Kavanaugh. Eight justices undoubtedly will face some applications for emergency injunctions, stays and other matters, with voting rights-related requests a frequent issue. Whether that is a good or bad scenario would depend on the outcome in the lower court and in the short-handed Supreme Court.
And there may possibly be only eight justices who attend the court's big, end-of-summer conference in September. Some potential candidates for that conference include:
➤➤ Already scheduled for the September conference, the
high-profile caseinvolving comedian Bill Cosby asks whether someone who publicly claims to be a victim of sexual misconduct becomes a limited public figure who can't recover for defamation. without showing actual malice.
Frederick Salo of New York is counsel to
Kathrine McKee; Cosby is represented by
Sarah Kelly-Kilgore of Los Angeles's
Greenberg Gross.
➤➤ Also on the conference list is Andersen v. Planned Parenthood of Kansas and Mid-Missouri, in which
Patrick Strawbridge of
Consovoy McCarthy Park defends Kansas's decision to drop Planned Parenthood from the list of qualified Medicaid providers.
Diana Salgado of Planned Parenthood Federation is counsel to the organization.
➤➤ At least seven petitions challenging the Federal Communications Commission's authority to impose net neutrality on broadband internet access service await the justices' attention.
➤➤ The question of whether Title VII's ban on sex discrimination includes discrimination on the basis of sexual orientation is
pending in Altitude Express v. Zarda.
Saul Zabell of
Zabell & Associates in Bohemia, N.Y., represents the company.
Gregory Antollino of New York is counsel to Melissa Zarda.
➤➤ Hernandez v. Mesa has returned to the high court as the family of a Mexican teen shot and killed by a U.S. Border agent continues attempts to recover for that killing.
Stephen Vladeck of the University of Texas represents the family.
Randolph Ortega of
Ellis & Ortega in El Paso, Texas, is counsel to the agent.
➤➤ And two petitions ask whether a statistical study showing racial considerations influence Oklahoma's capital sentencing decisions render the death sentences unconstitutional.
Emergency actions are hard to predict, but at least two cases brewing in the appeals courts could produce requests by the parties before a new justice takes his seat.
In May, the Ninth Circuit heard arguments in U.S. Dept. of Homeland Security v. Regents of the University of California—a challenge involving the Trump administration's elimination of the DACA program. The justices in February, rejecting the government's petition for review before judgment, said they assumed the appeals court would move "expeditiously" to decide the case. The losing party is likely to go immediately to the Supreme Court
Some D.C. Circuit judges' frustration with continually holding a challenge to the Clean Power Plan in abeyance while the Environmental Protection Agency revises it could send the case back to the Supreme Court in some form. The high court in February blocked implementation of the plan until the legal challenge to the plan was decided by the D.C. Circuit. Three judges warned in the most recent abeyance order that they were unlikely to approve another one.
Video: Kennedy
discusses his legacy during remarks at the Ninth Circuit's judicial conference.
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