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Supreme Court begins new term in shadow of Kavanaugh fight

A short-handed Supreme Court will take the bench again on Monday to gavel in a term that has been totally ec...

Posted: Oct 1, 2018 1:27 PM
Updated: Oct 1, 2018 1:27 PM

A short-handed Supreme Court will take the bench again on Monday to gavel in a term that has been totally eclipsed by the raging battle over the confirmation of Brett Kavanaugh.

Back in July when President Donald Trump announced that he would nominate Kavanaugh to take the seat of retiring Justice Anthony Kennedy, a move that would cement a conservative majority for decades to come, Republicans hoped that Kavanaugh would be seated for the start of the new term.

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That all changed when Christine Blasey Ford came forward with allegations of sexual assault, which Kavanaugh vehemently denies. Now Kavanaugh's confirmation, which seemed certain a few weeks ago, has been thrown into question.

So for the second time in recent years, Chief Justice John Roberts will find himself having to navigate the docket with only eight justices.

That means he will proceed gingerly, perhaps delaying some pending petitions to hear cases, examining existing cases to see if more narrow avenues of agreement are available and hoping that some cases currently in the lower courts on divisive issues continue to percolate below before reaching the high court.

All the while, the justices know that even if Kavanaugh is not confirmed, President Donald Trump will likely nominate another conservative, and the court is still poised to take a hard right turn.

"I think a more accurate caption for this term is the 'calm before the storm,'" Irving Gornstein, executive director of the Supreme Court Institute at Georgetown Law said at a recent event.

"We are headed for a whole new world, and the only real question is how far are we going to go and how fast are we going to get there," he said.

Roberts treads carefully

Just a week ago the eight justices -- four liberals and four conservatives -- met behind closed doors to discuss the mountain of cert petitions that had piled up over the summer to vote on which of the cases should be added to the Court's docket.

It takes four justices to agree to hear a case. But Roberts will move carefully. He knows that if an eight member court splits 4-4, then the justices are left simply upholding the lower court ruling and setting no precedent.

"In recent years, whenever the court has been short-handed, we've seen it move more cautiously by both agreeing to review fewer total cases and by looking for narrow grounds around which to build consensus in the cases it does hear," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

"Even if Judge Kavanaugh is ultimately confirmed and is on the court by the end of October, I still think we should expect this term to be relatively quieter and slower than what we saw last year," Vladeck added.

In recent years the pre-term "long conference" has resulted in some significant grants to start off the new term. But this year was different. There was a low number of grants in less high-profile cases. Petitions on more controversial issues were not acted upon.

For instance, the justices are considering a case about a 93-year-old war memorial in Maryland. Challengers argue that the monument violates the Establishment Clause of the Constitution because it stands on public ground and is in the shape of a cross. A lower court ruled in their favor, holding that the "monument here has the primary effect of endorsing religion and excessively entangles the government in religion."

Supporters of the monument want the justices to step in and take the case, pointing out there are similar memorials in Arlington National Cemetery. The court could grant this Monday morning, but might decide to put off a case that could be closely divided.

Another pending petition concerns whether the 8th Amendment prohibits all sentences of life without parole for juvenile offenders. In 2012, the Supreme Court held that mandatory life sentences for juveniles were unconstitutional, but it did not categorically ban the imposition of the penalty. The justices discussed this last week but did not vote to take up the case.

Several controversial issues could make their way in some form to the justices in the coming weeks and months. Those include challenges to the Affordable Care Act, the Trump administration's decision to phase out the Deferred Action for Childhood Arrivals program and cases concerning LGBT rights and sanctuary cities.

Double jeopardy and death penalty

Tuesday, justices will hear a case involving the death penalty that will be closely watched to see how divided the eight justices are.

Madison v. Alabama concerns whether it is cruel and unusual punishment to execute a person who now suffers from dementia and no longer remember committing the crime. It is a case where Anthony Kennedy could have been the swing vote because he voted at times to narrow the death penalty. If the justices are divided, this could be a case that comes back once Kavanaugh or another nominee is confirmed.

One of the most interesting cases on the docket this fall is Gamble v. United States. On the surface, it is a technical case concerning the double jeopardy provision of the Fifth Amendment that says no person should be tried for the same offense twice in federal court.

Supreme Court precedent holds however, that one can be tried for the same offense in state and federal courts because, for purposes of the Constitution, the state and federal governments are separate sovereigns possessing their own authority, and so are not exercising the same prosecutorial power even when trying the same individual for the same offense. It is known as the "dual sovereignty exception."

The case concerns Terance Martez Gamble, who was convicted in 2008 for second-degree robbery in Alabama. Both federal and state law prohibited him from every having a handgun again.

Four years later, however, he was pulled over for a broken taillight and police found a handgun in his car.

He was prosecuted under state and federal law.

He argues he was subject to two convictions and two sentences for a single offense of being a felon in possession of a firearm and, as such, must spend three additional years in prison. "The Double Jeopardy Clause bars that result," his lawyers argue.

The case could have nationwide implications with respect to the ability of state and local prosecutors to also try those convicted (or acquitted) of federal crimes. But some point out that it could have an impact for Trump and the pardon power.

"Some say that if President Trump pardons those close to him who have been convicted of federal offenses, like Michael Cohen, Michael Flynn or Paul Manafort, a ruling that got rid of this 'separate sovereigns' idea would prevent states from trying to hold those same individuals to account under state law," Vladeck said.

Minnesota Coronavirus Cases

Data is updated nightly.

Cases: 603760

Reported Deaths: 7605
CountyCasesDeaths
Hennepin1247651771
Ramsey52437895
Dakota46772469
Anoka42693458
Washington27391290
Stearns22545224
St. Louis18120311
Scott17536134
Wright16400148
Olmsted13386102
Sherburne1199494
Carver1065848
Clay825492
Rice8186110
Blue Earth762343
Crow Wing681194
Kandiyohi667185
Chisago619152
Otter Tail585684
Benton582798
Goodhue483373
Douglas475381
Mower470733
Winona460851
Itasca458663
Isanti439564
McLeod429161
Morrison424361
Nobles407950
Beltrami406960
Steele397416
Polk388872
Becker386555
Lyon363853
Carlton352556
Freeborn346832
Pine335023
Nicollet330945
Mille Lacs311454
Brown307840
Le Sueur297125
Todd285632
Cass285532
Meeker263042
Waseca237823
Martin234932
Roseau210721
Wabasha20783
Hubbard196041
Dodge18773
Renville182346
Redwood176338
Houston174016
Cottonwood167124
Wadena162422
Fillmore157410
Faribault154319
Chippewa153838
Pennington153820
Kanabec146828
Sibley146810
Aitkin138637
Watonwan13589
Rock128719
Jackson122612
Pipestone116626
Yellow Medicine114920
Pope11296
Murray107010
Swift106918
Koochiching94617
Stevens92411
Clearwater89016
Marshall88717
Wilkin83112
Lake82920
Lac qui Parle75622
Big Stone6044
Grant5938
Lincoln5843
Mahnomen5669
Norman5479
Kittson49022
Unassigned48093
Red Lake4017
Traverse3755
Lake of the Woods3453
Cook1720

Iowa Coronavirus Cases

Data is updated nightly.

Cases: 370583

Reported Deaths: 6041
CountyCasesDeaths
Polk58186638
Linn21181339
Scott20287246
Black Hawk16065312
Woodbury15227230
Johnson1460585
Dubuque13496211
Dallas1128499
Pottawattamie11214173
Story1070848
Warren583591
Clinton561393
Cerro Gordo553193
Sioux516974
Webster514494
Muscatine4875106
Marshall486376
Des Moines466970
Wapello4333122
Buena Vista426140
Jasper420872
Plymouth402981
Lee381756
Marion365976
Jones300857
Henry294137
Bremer287760
Carroll286752
Boone268334
Crawford267840
Benton258755
Washington256751
Dickinson249344
Mahaska232251
Jackson225242
Clay216527
Kossuth216166
Tama211671
Delaware210943
Winneshiek197735
Page194522
Buchanan193033
Cedar192023
Hardin187344
Fayette186443
Wright185940
Hamilton181751
Harrison179973
Clayton171057
Butler165935
Madison164519
Mills163324
Floyd163042
Cherokee159338
Lyon158841
Poweshiek156936
Allamakee152652
Hancock150134
Iowa149824
Winnebago144331
Cass139255
Calhoun138913
Grundy137133
Emmet135841
Jefferson133535
Shelby131537
Sac130720
Union129935
Louisa129749
Appanoose129049
Mitchell126643
Chickasaw124517
Franklin123323
Guthrie123032
Humboldt119526
Palo Alto113623
Howard105022
Montgomery103638
Clarke100924
Keokuk96432
Monroe96230
Unassigned9540
Ida91535
Adair87332
Pocahontas85822
Davis85225
Monona82931
Osceola79016
Greene78011
Lucas77923
Worth7598
Taylor66712
Fremont6269
Decatur6159
Ringgold56324
Van Buren56318
Wayne54423
Audubon52910
Adams3444
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