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Supreme Court Begins New Session With Just Eight Justices

The Supreme Court is seen in Washington, Friday, April 20, 2018.
Associated Press
The Supreme Court is seen in Washington, Friday, April 20, 2018.
Supreme Court Begins New Session With Just Eight Justices
Supreme Court Begins New Session With Eight Justices GUEST: Dan Eaton, partner, Seltzer, Caplan, McMahon, Vitek

I'm Maureen Cavanaugh. It's Monday October 1st. Our top story on Midday edition. With all the attention being paid to Supreme Court nominee Brett Kavanaugh's confirmation hearings and the new FBI investigation underway it's easy to forget that today marks the start of a new U.S. Supreme Court session. There are only eight justices on the bench right now and while the court awaits a newly confirmed justice at some point cases begin to be argued today. Joining me to discuss what that supreme court caseload looks like is Attorney Danny. And Dan welcome to the program. Thank you Maureen. Good to be with you. Operating without a ninth vote is becoming a thing on the U.S. Supreme Court. Haven't they recently been down this road before. They have. Remember when Justice Scalia died. They were and the majority leader McConnell declined to move forward with Merrick Garland nomination. They were it eight justices until Justice Neal of course that ultimately was confirmed making him Donald Trump's first and so far only Supreme Court justice. Now does the court docket this session reflect some doubt about whether the court would be up to full steam as the new term gets underway. Well in a sense it does Loreen in this respect. There are no blockbuster cases. I mean you ask you you ask whether there are big cases will big is a relative term of one Supreme Court advocate was quoted The New York Times today saying this one is going to be a term for the casebooks not for the history books and in that respect he's he's right. But there are still some very important cases that have broad application to a lot more people than some of the so-called constitutional blockbusters that we'll be reading about should those cases ultimately be granted review by a fully staffed Supreme Court. So what are some of the notable cases the court will hear. Well the Supreme Court has only accepted agree to hear a few dozen cases so far roughly half its overall docket but those that really do draw attention right now. One case involves the death penalty and whether someone with dementia can be executed under the Eighth Amendment ban on cruel and unusual punishment. Remember the Supreme Court with Justice Kennedy voting with majority has said for example that juveniles can't be executed. Another big case which has implications concerning some of Donald Trump's potential pardon of some of those that are caught in the investigation concerns the double jeopardy clause and whether for example you can be prosecuted both by the State Government and the federal government for the same kind of conduct. If President Trump were to pardon some of his associates who are in the council's crosshairs for federal crimes. The question is whether state prosecutors can pursue parallel proceedings there's one other cases pending concerning the scope of whether employees can be required to relinquish the potential of arbitrating their cases as a class action if they sign a general agreement to arbitrate their claims. Those are only the three of the cases that are currently on the court. And even just describing them and some of the other patent and intellectual property cases that are also on the court suggest to you that this is not going to be a term at least so far where a lot of people are going to be seeing headlines. What about cases like Dokka or the ban on transgender persons in the military. Isn't the court going to look at those issues. Well it's going to look at them in the sense of determining whether to accept them for review. So for the court so far the court has not agreed to hear those cases there. The case about Dokka and really the scope of executive authority remember is very much before the court as to whether the court is going to accept a review of that case. But it's that the court has not yet accepted review with regard to Transgender Military. That case also could very well come before the court as could an important case where a petition for review is pending concerning whether the broad civil rights act the employment Civil Rights Act Title 7 applies to sexual orientation. All of those kinds of cases could come before the court and the court could accept them for review but hasn't yet and probably won't unless they have a full nine member complement to hear and review those cases. And what about issues related to current news like the Robert Mueller investigation for instance. And so on those cases where it will really be interesting to watch because there you want to look at cases concerning the scope of executive authority the docket case is actually one example of that. How far does executive authority go. Can the president be potentially subject to criminal proceedings these kinds of issues are percolating. They haven't really ripened but they could in the very near future. And if the Supreme Court has nine justices it is more likely to hear those kinds of cases than if it only has eight and the prospect of a deadlocked 4 to 4 court is a very real one. Now if nominee Brett Kavanaugh is confirmed I suppose he could be seated in just a week or so is that right. He could be seated virtually right away. As a matter of fact and remember as you pointed out the court's term is starting today without him and it will continue whether he ultimately gets confirmed or not. But yes he could be seated right away and then he will hear those cases the cases in which he's going to make a difference are going to be those cases in which presumably Justice Kennedy would vote the other way. But we don't know what those issues are until Justice Tabun or if he becomes Justice Kavanaugh makes his voice known with the first cases he hears and votes on just want to ask you if Brett Kavanaugh is not confirmed. How long does it take to get a new nominee through the confirmation process. That's a great question and the answer frankly is blowing in the wind if you have to use the analogy from a 1960s song. We don't know. There's some talk about whether you get someone in before the midterm elections or whether you even have someone in the in a lame duck session after the midterm elections do depending on whether it affects the composition of the United States Senate I suspect that Senate Majority Leader Mitch McConnell will do everything in his power to get someone confirmed as quickly as possible if Brett Kavanaugh's nomination fails one way or the other. I've been speaking with Dan Eaton legal analyst and attorney with Seltzer Caplan McMahon and Vitek. Dan thanks so much. Thank you.

With Justice Anthony Kennedy's retirement from the Supreme Court this year, the court is currently operating with eight justices split evenly between conservatives and liberals.

Legal analysts note that the cases currently on the docket involve the Endangered Species Act, securities fraud, and arbitration, among others.

The more contentious issues making their way to the court -- and expected to arrive before the session is over -- include the Deferred Action for Childhood Arrivals Act (DACA); the Robert Mueller investigation into interference in the 2016 election; and alleged violations of the emoluments clause by President Trump.

Attorney and legal analyst Dan Eaton talks about what's on the SCOTUS docket and what difference the addition of Brett Kavanaugh to the court would make.