SUPREME COURT RESPONDS TO POLITICAL DISPUTE
— SORT OF
[Posted August 29, 2015] Sometimes, your humble scribe is a little slow on the uptake. That happened yesterday, when I got notice that the Supreme Court has revised its September session docket. The previous edition had seven cases slated for Monday (including one of mine), six each on Tuesday and Wednesday, and three on Thursday, which was to be opinion day. (In case that sounds odd, you should know that the last day of the session is traditionally the shortest, to allow the justices to finish the week’s business and start making their way back home. A three-case opinion day is perfectly normal.)
The new schedule condenses the docket to just three days: seven cases on Monday, eight on Tuesday, and seven more on Wednesday.
The major surprise for me was the announcement that opinion day would still be Thursday, September 17. That stuck out to me, as the court has always handed down opinions on the last day of the court’s open session. Indeed, the justices literally “hand down” the decisions in a nice touch, where each justice, one-by-one, announces a decision – the result only, with a note of who if anyone dissents – and then hands the original slip opinion to the Clerk of Court, who stands below the bench in the well of the court.
This is a beautiful tradition that provides a measure of ceremonial formality to the court’s decisions. But on the September opinion day, I strongly suspect that the opinions will be “handed down” only metaphorically, when they’re posted online, on the court’s website. That’s not much of a ceremony, I mused as I silently hoped that this wouldn’t become the norm.
It didn’t hit me until this morning why the court was making this change, which is overwhelmingly likely to be a one-time event: this is the way the court addresses, at least in the short term, the problem engendered by the political fight over the seventh seat on the court. Justice Roush’s gubernatorial appointment expires on Wednesday the 16th, so by anyone’s measurement she can participate in that day’s docket. Thursday was the problem: even if the Governor were to reappoint her, there would be uncertainty over the legality of that appointment.
The court has arranged to avoid any problem with this session by calendaring the entire session’s docket for the first three days of the week. Accordingly, no litigants on the September session’s docket need worry about the legitimacy of the court’s ruling.
A cynic might point out that this action only postpones the inevitable controversy, by kicking the can to the November session. But I see the court’s reasoning, and I agree that this is a good move. Besides, who’s to say that the current impasse, ugly as it is, will inevitably last until November? Perhaps the warring political parties can find a solution before the court reconvenes on November 2. (I realize that about half of you just blurted out, “Yeah; right,” but let’s wait and see, okay?) In the meantime, the Supreme Court has done as much as it can. Now it’s up to the General Assembly and the Governor.