Telling the Supreme Court’s story, as it happens

In his new role as Supreme Court correspondent for Constitution Daily and the National Constitution Center, Lyle Denniston will be offering his unique analysis of the Court on a more regular basis right here. Today, Lyle explains what the Court actually does during its summer period – and why it is important work.

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On March 9, 1803, newspaper readers in Philadelphia would have found a short story on page 3 of the local paper. Headlined simply “MANDAMUS,” it was a brief, and almost entirely unexplained, news story about the Supreme Court’s decision about two weeks earlier in the case of Marbury v. Madison. The ruling deserved more: It claimed for the Supreme Court the awesome power to say what the Constitution means.

Some 213 years later, at least two lessons might be drawn from that story: The Supreme Court always holds the attention of the American people, but what it does very often needs explaining. A current example: the Justices have been on summer recess for a month, but still they do things that need explaining. The wheels of justice may turn slowly at times, but they do not stop turning. Why?

That is the kind of question that Constitution Daily – which prides itself on offering “smart conversation” about America’s founding document and about the Supreme Court — has regularly and reliably answered. It will be doing more of that, with its own correspondent on the scene: working on the ground floor at the court itself on Capitol Hill in Washington.

To begin with, let’s answer how, and why, the Supreme Court is still at work, when its eight sitting members are out of town for most of the summer, taking vacations, teaching, or even watching a grandson appear in “Merchant of Venice” in a theater in Venice itself.

The court’s regular sessions run, usually, from early October to late June. But, since most of them left town, their new law clerks have begun to arrive, a few at a time, and they already have more than a dozen quite lengthy lists of cases they have to start boiling down to summaries to help the Justices decide which to hear, and which to turn aside.

New cases arrive at the court, maybe as many as a dozen a day. An example of a recent arrival: an appeal by a Colorado bakeshop owner who is in legal trouble for refusing to design a wedding case for a same-sex couple; he is refusing because of his religious objections to such marriages, and is asking for the court’s protection.

But the law clerks, the new ones and some of the ones from last term remaining on the job to ease the transition, are also helping the Justices – no matter where they are – actually make some decisions. Right now, for example, Chief Justice John G. Roberts, Jr., with the help of his clerks, is preparing to decide what to do with the court’s first new case on the issue of transgender rights: Does federal law prevent discrimination against people who were assigned one gender at birth but have come to define themselves as the opposite?

That is something that has a deadline for action. A new school year opens at a Virginia high school on September 6, and the school board needs to know what kind of policy it can have on transgender students’ access to bathrooms. If Roberts decides to invite his colleagues to join in making the decision, all of the Justices will be in touch, one way or another, to make up their minds together.

Sometime in the next few days – and, again, despite the summer recess – state officials in North Carolina are expected to ask the court to put on hold a new ruling by a federal appeals court, striking down a broad new state election law that was challenged as racially biased against black voters. The court won’t be back in session before October, but this dispute apparently won’t wait for that.

These mid-summer disputes are serious legal controversies, but they are different from the ones that the Justices will start examining when they open their new term in October. The summertime cases involve requests for temporary orders, to keep a lower court ruling from taking effect while a new appeal challenges them. The cases already granted review will be the stuff of the court’s hearings after the recess is over; those are already on the track for final decisions in the new term. The court already has promised the review of enough new cases to fill its hearing schedule through December.

But even with the summer activity, the hot months are a quiet time at the court. There are not so many visitors, with school students around the country on vacation, so field trips are off. The court building itself looks, from the outside, as if it is wrapped in gauze; it is getting new external repairs to the masonry, and the wrapping is there to keep down the dust.

Although the new term starts on the first Monday in October, the Justices actually have their first gathering already scheduled, for September 26. Held a week before the term officially starts, that private session will be devoted to selecting maybe a dozen or so new cases for review. It takes the votes of only four Justices to accept a case for review. But it will take a majority to actually make final decisions in cases that get a full review.

Although there has been a vacant seat on the court since Justice Antonin Scalia died in mid-February, there does not appear to be any realistic chance that a new Justice will be approved by the Senate in time for the opening of the new term. A federal appeals court judge in Washington, D.C., Merrick B. Garland, is President Obama’s choice to take that seat. But Judge Garland has been waiting since March 16 for the Senate to take any action on his nomination. That, apparently, has set at least a modern record for inaction on a Supreme Court nominee.

The Senate’s Republican leaders have held off any action, arguing that the nation’s voters should have a chance to make their choice for a new president before the Supreme Court vacancy should be resolved. There are, as yet, no plans on what will be done after the election is over in November.

The court has functioned with only eight Justices since February but found itself deadlocked 4-to-4 on two major cases the Justices heard the last term. One of those was to decide the legality of President Obama’s broad new immigration policy, affecting the fate of more than 11 million undocumented immigrants living in the country.

One of the summertime tasks the Justices may take up is a request by the Obama administration to grant a new hearing on the immigration issue, to be decided when there is a ninth Justice on the bench. The prospects for that request are uncertain; there is no deadline for the court to react to it – unless it would be that the Obama term will end on January 20, and the political future of his immigration policy after the election is over is entirely uncertain at this point.

Constitution Daily, though, will keep you posted.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

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