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New SCOTUS Justice Could Decide Cases Previously Argued -- but Will They?

By Casey C. Sullivan, Esq. on January 13, 2017 | Last updated on March 21, 2019

In the Supreme Court, it's traditional for new justices to sit out of decisions in cases that were argued before they took the bench. That means if, for example, a Trump-nominated justice were to join the court on February 1st, they would not take part in decisions in cases where oral arguments were held earlier in the term.

But that is just tradition. There are no hard-and-fast rules keeping justices from participating in decisions when they weren't part of oral arguments.

Bound by Traditional Alone

"Court experts agree," according to the National Law Journal's Supreme Court Brief, "that there is no ironclad command that prevents justices from voting on cases that were argued before their tenure began."

"The only thing preventing such a practice is long-standing tradition," the NLJ's Tony Mauro writes.

Does that mean that new justices will follow tradition? Mauro isn't so sure. "But in a new era," he writes, "with a new president who defies tradition daily, this one could also fail."

It's true, of course. There's nothing forcing new justices to abstain from older cases. And President-elect Trump has built his political career on defying convention, from his raucous debate style to his unconventional tweets.

If his Supreme Court nominees follow in his footsteps, we could see a Justice Pryor voting in North Carolina's racial gerrymandering case, for example, or a Justice Sykes dissenting in a ruling on Texas's death penalty standards. In difficult, previously-argued cases where the Court is split, a new justice could be the deciding factor.

Whether new justices actually will break with standard practice and vote on older cases -- well, that's no sure thing, either. Former Supreme Court clerk William Suter weighed in, too, saying that participating in previously argued decisions would violate the "common sense rule."

"It would look fishy, especially if the newbie voted in a 5-4 decision."

Finally, there's the fact that most of Trump's potential nominees aren't as radical as the president-elect, at least not in their treatment of tradition and decorum.

A New Justice Could Be Coming Soon -- but Not as Soon as Expected

Speaking of new justices, Trump stated in his press conference on Wednesday that he expects to name a nominee soon after taking office. "I'll be making the decision on who we will put up. That will probably be within two weeks of the 20th," the date of the inauguration, Trump said.

"We've met with numerous candidates," he explained. "They're outstanding in every case."

Previous reports had indicated that Trump may release the name of his nominee before the inauguration.

By pushing back the date, Trump may be avoiding a potentially embarrassing situation: a president-elect putting forward a Supreme Court nominee while the sitting president is still in office.

An early nomination could have further highlighted the unprecedented actions surrounding Merrick Garland's blocked nomination, providing extra fodder to Trump's opponents in what is sure to be a difficult confirmation hearing no matter what.

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