The uncertainty surrounding U.S. Supreme Court nominee Brett Kavanaugh’s confirmation may already be affecting the court’s docket for the term that begins on Oct. 1.
Last week, the court pulled several high-profile cases off the list that the justices were scheduled to consider today at the court’s so-called long conference. That is when the justices evaluate hundreds of petitions filed over the summer to decide whether grant review in the coming term.
Though the court does not explain why it reschedules or delays the consideration of pending petitions, it might be that the prospect of an eight-member court in the short or long term led the justices to shelve cases that might result in 4-4 ties. Justices traditionally try to avoid ties because they have the effect of allowing the lower court ruling to stand, without further resolution of the issue involved.
In the past, according to Vinson & Elkins Supreme Court specialist John Elwood, justices “definitely appear to have rescheduled cases to push off consideration of them, and I could see them rescheduling cases to await the arrival of a new justice.” But, he added, “There could be other explanations. Rescheduling is about the murkiest Supreme Court practice.”
Elwood, a former clerk to Justice Anthony Kennedy, said his understanding is that any justice can have a case rescheduled. But, he said, “I suspect that the chief justice does most of the rescheduling, since I think he keeps the closest eye on the docket of all the justices.”
Among the cases that were scheduled to be discussed today but were recently rescheduled for a future unspecified date are:
➤➤ ConAgra Grocery Products v. California and The Sherwin-Williams Company v. California, key business cases challenging California’s use of public nuisance law to exact damages from companies with long-ago involvement in promoting the use of lead paint. They were taken off the conference list on Sept. 20.
➤➤ Altitude Express v. Zarda and Bostock v. Clayton County Georgia, asking whether the federal ban on sex discrimination in the workplace includes sexual orientation bias. They were rescheduled on Sept. 11, four days after Kavanaugh’s hearing ended.
➤➤ Kennedy v. Bremerton School District, a First Amendment dispute over a public school coach in Washington state who was fired for kneeling in prayer at a football game. The court rescheduled the case on Sept. 20.
Some of the rescheduled cases were ones that court-watchers hoped would spice up what was shaping up to be an otherwise lackluster term. Several death penalty cases also were delayed.
Just last Friday, U.S. Solicitor General Noel Francisco said at a Federalist Society event, “The docket thus far doesn’t currently have the blockbuster cases before the court, but there are several big cases in the pipeline.”
Some hot-button cases remain untouched on the conference list for today, including Maryland-National Capital Park and Planning Commission v. American Humanist Association and The American Legion v. American Humanist Association, a dispute over whether a war memorial in the shape of the cross on public land in Maryland violates the Establishment Clause of the First Amendment.
The court’s decisions on whether to grant review in the cases discussed today will likely be announced Thursday, the same day Kavanaugh and his accuser Christine Blasey Ford are expected to testify before the Senate Judiciary Committee.