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The Supreme Court Without Scalia: Oral Args and Only 8 Justices

By Casey C. Sullivan, Esq. | Last updated on

When the Supreme Court reconvened on Monday to hear its first oral arguments since Justice Scalia's passing, the justice's regular chair sat empty, draped in black. For a man who had such an impact on the court, and particularly on its oral arguments, Scalia's absence was palpable.

Now, with only eight justices left to hear and decide cases for the immediate future, how will oral arguments and the Supreme Court be affected? These first few days of arguments, along with some comments from Justice Alito, might give us a hint.

Time to Play Nice?

With no prospect of a new justice joining the Court in the very near future -- Senate Republican leaders announced on Tuesday that they would not even consider new nominees -- the Court is left to operate a man down.

That puts the Court in a difficult place, split evenly between conservative and liberal justices and possibly unable to reach a majority in its most controversial and contested cases. (Keep in mind, the majority of Supreme Court decisions are unanimous.)

But, as Justice Alito noted on Tuesday, while speaking to law students at Georgetown, an even split between justices wouldn't be entirely unheard of -- and it might require a greater focus on collegiality and consensus building.

While noting that the Court has to still "see what develops," after the loss of Justice Scalia, Justice Alito pointed out that "there's nothing in the Constitution that specifies the size of the Supreme Court. There were times in the history of the court when the court had an even number of justices."

Those evenly-split Courts, like the ten justice Court in 1863, still managed to function, more or less. "They must have been more agreeable in those days," Alito noted.

Sleepy at First

That even-Court agreeableness doesn't seem to have spread to the current justices just yet. When the first oral arguments began on Monday -- in Kingdomware Technologies v. United States, regarding set-asides for veteran-owned businesses -- things were a little sleepy, perhaps more reminiscent of oral arguments as the occurred 20 or 30 years ago: long explanations for the lawyers, little interruption, not too much direct engagement between the justices.

The main highlight was Chief Justice Roberts' confusion over the government lawyer's bro-talk. "When you say you're crushing the goals, that means you're meeting them?" Roberts wondered. (Yes, an assistant solicitor general with the Department of Justice accidentally confused the Supreme Court with his CrossFit class.)

Back to the Good Old Days

Then things got back to normal. In arguments for Utah v. Strieff, a case involving the admissibility of evidence seized pursuant to a lawful arrest but an illegal stop, the justices were in full confrontation mode.

Justice Sotomayor, criticizing the police for an unjustified stop, invoked Ferguson, Missouri the town where Michael Brown was killed by police in 2014, helping spark the Black Lives Matter movement.

Her point: a ruling in favor of the government could increase the likelihood that officers would stop members of highly policed communities, like Ferguson, where a high percentage of people have outstanding traffic warrants that could then justify their arrest. "What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through and, if a warrant comes up, searching them?" she asked.

Sotomayor's Sick Burn

Justice Alito shot back. "Do you think the judges in the traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?" he asked.

But even that question earned a quick repost from Justice Sotomayor, who said she was "very surprised that Justice Alito doesn't know that most of these warrants are automatic."

It was the sort of spirited back and forth that would make Justice Scalia proud, but which might not bring us closer to the "more agreeable" nature needed to manage an eight justice Court.

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