Would Blocking Supreme Court Judges Unleash Constitutional Confusion?

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Publish Date:
November 1, 2016
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McClatchy DC
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Summary

Some Republicans say if Hillary Clinton becomes president, they’re prepared to leave one or more Supreme Court seats vacant long-term – a political maneuver that could result in Americans living under a variety of legal decisions and uncertain about their fundamental constitutional rights, law experts say.

North Carolina’s U.S. Sen. Richard Burr this week became the latest to pledge he’ll stonewall Clinton’s nominee for the current Supreme Court vacancy if she beats Donald Trump.

“The Constitution really shouldn’t mean different things in different parts of the country,” said Pamela Karlan, a former U.S. Department of Justice official and Stanford University law professor.

An even number of Supreme Court justices, she said, increases the likelihood the Supreme Court will decline to hear cases or split 4-4 in a decision. The legal term for what happens next is called “affirmed by an equally divided court.”

When that happens, the lower court decision stays in place. In the lower courts, there’s often competing judicial rulings on a single legal issue, Karlan said.

For example, she said, she was an attorney on a federal case 10 years ago about whether a person’s IRA retirement savings should be protected from creditors if they declare personal bankruptcy. The issue went to the Supreme Court when there was disagreement across three lower federal courts.

Without the Supreme Court decision in cases like this and others, the country’s 13 appellate courts and state superior courts would have the final word – but the last legal word in those cases could look very different across states. This could cause uncertainty, Karlan said, for businesses that operate in several jurisdictions and families who move or travel.

The Supreme Court’s authority and function is critical to ensure constitutional rights are uniformly recognized and that federal law is consistently applied across state lines, Karlan said. The issues the Supreme Court weighs in on are hefty and far-reaching: Recent major court decisions have affected voting and labor laws, healthcare and insurance, same-sex marriage and abortion access, affirmative action in college admissions and campaign finance regulations.

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