SCOTUS: Fisher II oral arguments

Per #537, if the vote has been cast it can’t be changed, can it?

Not to be cold about it,. but dead Justices can’t vote. No “vote” is official until the decision is announced and the opinions are released, because up until then any Justice is free to change his or her mind. So it just doesn’t matter what the departed Justice thought or wrote; once they’re gone, they can’t be part of the decision.

There’s an initial “vote” in conference immediately after oral argument, and it’s decided who’s going to write opinions. But that vote isn’t binding. There’s horse trading that goes on after that, sometimes Justices change position, a majority becomes a dissent or vice versa. In principle this can go on until the decision is officially announced. No decision has been announced in the Fisher case, so what Justice Scalia thought is now irrelevant, except insofar as it might affect the thinking of any of his surviving colleagues.

@Youdon’tsay. It’s my understanding that there’s no official vote til the decisions are published. Til then the justices ( at least in theory ) can try to change the others minds.

Here’s an excellent discussion of the issue by the best in the business. http://www.scotusblog.com/2016/02/what-happens-to-this-terms-close-cases/

Votes aren’t “official” until after the opinions are written, so unless This case has already been written up and signed off on (very unlikely) Scalia’s preliminary vote won’t count.

@gettingschooled, I will give you a lawyer’s answer and say it depends, lol. I think it is at least possible the Court will hold the case over and wait for a new Justice. I think much of that will depend on Kennedy and whether he wants to give the University another bite at the apple to articulate a rationale for the policy. I think it also will depend on whether there was a majority for a significant opinion, and whether the Court (primarily Roberts I would guess) wants a sweeping affirmative action opinion coming down 4-3. On the other hand, the Justices may not want to wait on this, since it is very unlikely imho that a Justice gets confirmed and seated in the next term.

Kennedy is a bit different because he was not nominated in the last year of Reagan’s presidency and he was the third nominee for the same seat. Reagan initially nominated Bork in July of 87, then Ginsburg after the democrats defeated Bork in the Senate and then finally Kennedy in November of 87 after Ginsburg withdrew.

And I am not sure it serves the democrats interest to nominate a true “moderate” in any case. No democratic President is going to nominate someone who is anywhere near where the middle of the country is on abortion for example. Certainly getting a nominee through, especially one who is moderate enough not to give Republicans some cover for voting against the nominee, has the potential to depress turnout, which is as always a huge issue for democrats. I assume the calculus is to find someone who expresses a wedge issue with one of the needed constituencies, in an effort to have the issue in the general election.

Yes, I agree that Scalia’s absence is likely to result in a narrow opinion on Fisher. Of course, I thought it was going to be narrow with Scalia there. It has so many problems.

Early betting is that Obama nominates Sri Srinivasan, a DC Circuit Judge widely perceived to be a moderate. He would be the first Indian-American Supreme Court Justice–he was born in India but grew up in Kansas and is a product of Stanford undergrad, law, and business schools. He clerked for Sandra Day O’Connor, about as centrist a figure as there’s been on the Court in recent decades, then later worked in the Solicitor General’s office under both the G.W. Bush and Obama administrations, as well as in private practice for a top law firm (O’Melveny & Myers). On the strength of this bipartisan resume his nomination to the DC Circuit by President Obama was confirmed by the Senate on a unanimous 97-0 vote. That would make it particularly awkward for the Senate to block his nomination after he’s already been vetted and overwhelmingly approved for what is arguably the nation’s second-most influential court, traditionally a training ground for Supreme Court Justices (Justices Scalia, Roberts, Thomas, and Ginsburg all served on the DC Circuit before being elevated to the Supreme Court, as have many before them).

Srinivasan is said to be a strong advocate for stability in the law. That means he’s unlikely to support a radical rewriting or dismantling of precedents like Roe v. Wade or Grutter, thus effectively supporting the President’s agenda on key social issues, but coming from a place where he can’t fairly be accused of having an “activist” judicial philosophy or ideologically driven agenda… That would further force the Republican Senate to paint themselves into a corner as advocates of the primacy of political ideology over law if they were to oppose him.

Heard that rumor last night but don’t think it will excite the base enough, if the Senate sits on it.

Cut out the political chatter-- you’re going to get my thread shut down. Please confine the discussion of Scalia to the context of Fisher II.

I have a few more questions for the attorneys or anyone who knows.

  1. If the Fischer Decision comes out with only 8 justices, does it have the same weight of a full court decision?
  2. If the appointment is blocked, and another justice passes away (likely RBG or Kennedy) during that time, does that change anything? It is certainly possible.

well, since you have TWO threads on the same topic GMT, one of them should be closed. :slight_smile:

@Much2learn Kagan has recused herself on Fisher so at best you get a 7 justice decision.

1)technically yes, as long as a majority of those justices sitting agree on one position. Practically, the Court traditionally tries to not make sweeping decisions with less than a five person majority.

2)Scalia’s replacement likely will not take part in the decision on Fischer even assuming Obama can get someone confirmed. Generally, Justices do not participate in cases when they were not sitting during oral argument. This assumes that the Court doesn’t hold Fischer over for reargument, which I think is at least a possibility. And yes, if another Justice passes prior to the opinions being written then it would be even more likely the case would be held over, because there would only be six sitting justices, which is a bare quorum.

Let’s say no new justice is confirmed until after the inauguration of the new President. So, allowing time for the candidate to be nominated, vetted, interviewed in hearings and finally confirmed, we’re looking at March or April of 2017. Not only would we be missing a justice for this term, but we’d also be missing a justice for next term. We’d have eight-justice opinions until 2018.

Yep.

^ That’s right, Cardinal Fang (except the part about 8-justice opinions until 2018, which I think is a miscalculation). SCOTUS hasn’t yet decided about 80% of the cases on their docket this term (October 2015-June 2016), They can decide many of those with only 8 Justices because they’re mostly not hot-button cases, but many of the most controversial cases would end up 4-4, which is a waste of everyone’s time and resources. But if no new Justice is sworn in until after a new President is inaugurated on January 20, 2017, the very earliest we’d have a new Justice would probably be sometime in March, 2017, if not later. By then at least 2/3 of the 2016-17 term’s cases will have been heard with only 8 sitting Justices. That’s the better part of two Supreme Court terms in which the court would be effectively incapacitated from deciding controversial cases. But assuming the new Justice is seated by the beginning of the 2017-18 term, all those cases could be decided by a full complement of 9 Justices—assuming no more deaths or retirements between now and then.

Closing thread. Between the continuing political commentary and the off topic posts about Scalia’s replacement, it is not discussing the Fisher case any longer.