Erwin Chemerinsky, Founding Dean and Distinguished Professor, University of California, Irvine School of Law Erwin Chemerinsky, Founding Dean and Distinguished Professor, University of California, Irvine School of Law

On the eve of a potential Supreme Court nominee announcement, ALM’s Legalweek: The Experience event kicked off with an important question: How is the Supreme Court adapting to this new era of political skirmishes, far-reaching technology and social media issues?

In the conference’s “Update on Federal and Supreme Court” session, the University of California, Irvine School of Law’s Erwin Chemerinsky, founding Dean and Professor of Law, and Raymond Pryke, Professor of First Amendment Law, sought to put the ongoing Supreme Court justice appointment fracas in perspective.

“From 1971 until Feb. 13,2015, [when associate Justice Antonin Scalia passed], there was always at least five, and sometimes as many as eight, justices appointed by a Republican president,” he said. “Now there are only four justices appointed by Republicans.”

Chemerinsky, who was a personal friend of President Barack Obama nominee Merrick Garland, noted that Garland’s appointment was unprecedented, as the nominee went “longer without getting a hearing than anyone in American history.”

“Prior to 2016, there has been a [Supreme Court] vacancy in a president’s term 24 times,  and in 21 out of 24, [the nominee was] confirmed,” he added.

Unsurprisingly, the lack of a ninth justice on the bench is having a significant impact on the Supreme Court’s current productivity. While the October 2015 term, during which Scalia passed, saw such high-profile rulings on topics like abortion (Whole Woman’s Health v. Hellerstedt), and affirmative action (Fisher v. University of Texas) it ultimately covered a relatively low number of cases.

“The court decided only 63 cases, its smallest number since 1932 which is as far back as I can find statistics,” Chemerinsky said.

But while the court’s workload was light, it did not widely deviate from the new norm. “The court has yet to decide over 85 cases in any year with Chief Justice [John] Roberts” at the helm, Chemerinsky said, noting that during the 1980s the court heard an average of 160 cases per term.

Chemerinsky believed that in its current term, the Supreme Court will be still tied up with only eight justices given that whoever is going to be appointed isn’t going to be confirmed “until after the April arguments.”

But the deadlocks that can arise with an even number of justices, he said, can be solved in a number of ways, including affirming a lower court ruling, finding a consensus, or delaying a decision until the following term.

While delaying cases did not happen in the Supreme Court’s last term, it is not an uncommon action, Chemerinsky said. He pointed out that decisions on seminal cases such as Roe v. Wade, Brown v. Board of Education and Citizens United v. Federal Election Commission were all held over to the next term, sometimes long after their initial arguments were heard.

New Tech, Old Reasoning

While Supreme Court does not have as controversial and headline-grabbing cases it as it did during its previous term, there are still many cases that have potentially far reaching consequences on the docket.

Chemerinsky pointed to the case of Microsoft v. Baker, involving a class action suit brought against Microsoft over its Xbox game console, which involves whether a federal court of appeals has the jurisdiction to review the suit for certification after plaintiffs dismissed their individual claims with prejudice.

He likewise cited G.G. v. Gloucester County School Board, which deals with whether the Department of Education’s interpretation of Title IX that extended protection to transgender individuals should be given effect.

In addition to specific cases, Chemerinsky also advised keeping an eye out for how the Supreme Court tackles novel technology issues in the near future.

“I think the Supreme Court justices are struggling with technology, I think they are struggling to bring the constitution in the 21st century,” he said, pointing out that there have been no Supreme Court decisions yet on e-discovery or on free speech concerns with new technologies.

“The internet has drastically changed the very nature of freedom of speech,” he added, citing the complex legal issues arising out of use of social media to harass and potentially cause harm.

Chemerinsky also highlighted the potential struggles the Justices may face in applying the 4th amendment in the modern age.

“The 4th amendment protects persons, not places, it provides protections whenever there is a reasonable expectation of privacy,” he said. “But how is the expectation of privacy decided in a modern technological world?”

Far from applying new reasoning to these issues,  Chemerinsky noted that justices often “rely on 20th century, maybe 19th century, maybe 18 century” legal reasoning to novel issues.

He specifically pointed to the courts 9-0 decision in United States v. Jones, which held that use of GPS tracking constituted a search as defined under the fourth amendment. In a concurring opinion Justice Scalia, “said the 4th amendment means the same thing today as it was adopted in 1791,” and in doing so related the issue back English case law established in the 1765 case Entick V. Carrington.