Chief Justice John Roberts took his seat. Following the retirement of Anthony Kennedy—the previously most senior Associate Justice on the Court—the remaining Justices all took their new seats to begin the Supreme Court’s October Term 2018. On Roberts’ right sits Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. On Roberts’ left sits Justices Ruth Bader Ginsburg, Samuel Alito, and Elena Kagan.
By 10:00am EDT, the courtroom was nearly full. Eight Justices on the Bench, flanked by the Clerk and Marshal of the Court. An empty stand in front of the bench awaiting counsel for one of the two cases to be argued. A full audience, packed with reporters, legal teams, and lucky, interested members of the general public.
And yet, dispersed down every aisle, stretching into every corner, and wafting all the way to the high-vaulted ceilings, was a penetrating emptiness.
The bench was only eight-ninths full.
Due to the momentous hearings of Judge Brett M. Kavanaugh, President Donald Trump’s nominee to fill the vacancy of Justice Anthony Kennedy, there sat an empty desk and a vacant microphone to the left of Justice Kagan. No ninth chair rested in its usual place. Only seven members would offer questions and hypotheticals during today’s Oral Argument (Justice Thomas has a knack for leaning back in his chair and declining to chime in during arguments).
Nonetheless, following the traditional “oyez, oyez, oyez,” the Chief Justice opened: “I have the honor to announce, on behalf of the Court, that the October 2017 Term of the Supreme Court of the United States is now closed, and the October 2018 Term is now convened.”
After reading his traditional script regarding the Court’s release of Orders (see our updated list of Merits Cases on the Docket), Chief Justice Roberts calls the first case of this year’s term: Weyerhaeuser Co. v. U.S. Fish & Wildlife Service.
First Case of the Year
Weyerhaeuser (a wonderful German name, thus explaining its horrific spelling) concerns a challenge to the U.S. Fish and Wildlife Service’s designation of a particular tract of land as “critical habitat” for an endangered species under the Endangered Species Act of 1973. More specifically—and more interestingly—it involves the “critically endangered” dusky gopher frog. These frogs were native to coastal regions of Louisiana, Mississippi, and Alabama. Their habitat is confined to ephemeral ponds—ponds that hold water for brief periods before drying up completely—and the immediate environmental community around the pond. However, due to urban sprawl and deforestation, these once-abundant frogs are now only located near just one small pond in Hancock County, Mississippi.
In neighboring St. Tammany Parish in Louisiana, the Weyerhaeuser Company, along with two other businesses, sought to use land they owned in the Parish for residential and commercial development. The U.S. Fish and Wildlife Service, however, expanded a parcel of land it had deemed “critical habitat” for the frogs to include parts of the Parish, including the tract of land owned by Weyerhaeuser and the businesses. Though the dusky gopher frogs no longer resided anywhere in the Parish, the U.S. Fish and Wildlife Service pointed to the land’s historic breeding ground for the frogs and justified its expansion under the Endangered Species Act.
Weyerhaeuser and the companies (collectively, the “Landowners”) filed suit, challenging the agency’s designation of the land as “critical habitat,” since the frogs no longer lived there. After the District Court ruled in favor of the U.S. Fish and Wildlife Service, and the Fifth Circuit upheld the decision, the Landowners appealed to the Supreme Court.
The case now asks two questions: first, whether the Endangered Species Act prohibits the designation of privately-owned land as “unoccupied critical habitat” that is neither habitat nor essential to species conservation; and second, whether an agency determination is not to exclude an area from “critical habitat” due to the economic impact of designation subject to judicial review.
Case Two: An Age Discrimination Challenge
The second case for Oral Argument today is Mount Lemmon Fire District v. Guido. It presents a technical challenge of the wording of the Age Discrimination in Employment Act of 1967 (ADEA): whether a political subdivision of a state (here, a fire department) must have the ADEA-prescribed minimum of “20-employees” in order to be deemed an “employer” under the ADEA.
In 2000, the Mount Lemmon Fire District in Arizona hired John Guido and Dennis Rankin, who were 46 and 54 at the time, respectively. During their service, they were the oldest full-time firefighters employed by the Fire District. When Guido and Rankin were terminated by the Fire District in 2009, they filed age discrimination charges with the Equal Employment Opportunity Commission, and subsequently with the Mount Lemmon Fire District.
The District Court sided with the Fire District and refused to categorize the District as an “employer” under the ADEA. However, the Ninth Circuit reversed, holding that the fire department—being a political subdivision of the State of Arizona—does not need to have twenty employees to be liable to the provisions of the ADEA. The Ninth Circuit’s decision, however, resulted in a circuit-split: previous cases in the Sixth, Seventh, Eighth, and Tenth Circuits concerning this wording of the ADEA have all been decided in favor of the political subdivision.
Thus, the question presented before the Court (and the question argued in today’s proceedings) is: Whether, under the ADEA, the same twenty-employee minimum that applies to private employers also applies to political subdivisions of a state, as the Sixth, Seventh, Eighth, and Tenth Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the Ninth Circuit held.
Oral Argument in Cases Moving Forward
Tomorrow morning, the Court will hear Oral Argument in its next two cases. The first is Gundy v. U.S., a nondelegation doctrine case concerning the Sex Offender Notification and Registration Act of 2006.
The second features the argument we here at SCOTUS Predictions have all been waiting for—Madison v. Alabama. Yet, despite how excited we are to hear the Justices debate with counsel the nuances of the Eighth Amendment and its jurisprudence, there is a pressing issue we ought to address for our readers: What happens to the case with only eight Justices?
Simply put, nothing unusual must happen because the Court is not full. The Court will still hear oral argument and release its decision. It is the disposition of its decision one ought to worry about. The Court is now evenly divided in its judicial interpretive makeup. Four conservative-leaning Justices (the Chief Justice, and Justices Thomas, Alito, and Gorsuch) and four liberal-leaning Justices (Justices Ginsburg, Breyer, Sotomayor, and Kagan). Thus, if the Justices were all to rule along their traditional ideological lines, the Court would split 4:4.
Oh no! What happens then? Is there a decision? Does someone else get to chime in?
Yes, there will be a decision (in some form), but no third-party gets to break the tie. (Fun fact: this is not Congress. Please refer back to your high-school-level knowledge of the “separation of powers” doctrine.) If the Justices were to split 4:4, they would issue a per curiam decision acknowledging the split and must automatically defer to the lower court’s holding.
In Madison, the “lower court’s holding” was the Mobile, Alabama Circuit Court’s denial of a stay of execution for Mr. Madison. For us at SCOTUS Predictions, however, this would be a real anticlimax for our goal of authoring a full opinion on the merits for Madison.
The other option is for the Justices to schedule the case for re-argument when (or if) a ninth Justice is confirmed to the Court later this term.
Fear not, however. Whatever the outcome of the case, we at SCOTUS Predictions are steadfast in our commitment to authoring a full-fledged opinion on the merits of Madison’s case.
Tomorrow, the Court will conduct Day Two of its October 2018 Term. Again, it will only be eight-ninths full. This vacancy will, in addition, likely limit the volume of “blockbuster” cases granted by the Court in the foreseeable future. So that the Court does not split on high-profile cases, it likely will hold off on granting such cases until a ninth Justice is confirmed.
It will hold its next Conference to review certiorari petitions on Friday.