The Court Without Kavanaugh

The key cases that will be affected if Trump’s nominee doesn’t get confirmed in September.

Sen. Mitch McConnell shakes hands with Judge Brett Kavanaugh in McConnell's D.C. office on July 10.
Senate Majority Leader Mitch McConnell welcomes Supreme Court nominee Brett Kavanaugh on July 10 in Washington. Mandel Ngan/AFP/Getty Images

There are plenty of reasons why Republicans want to push Brett Kavanaugh onto the Supreme Court as quickly as possible, but the biggest one may also be the most obvious: They need his vote. The court is currently divided 4–4 between liberal and conservative justices, creating a momentary opening for progressives. If the Senate drags its feet on appointing a new justice, the court will likely deadlock in several important cases involving labor rights, endangered species, the death penalty, and possibly even the transgender troops ban. This stalemate will cement liberal victories in the lower courts and thwart a conservative rout. The GOP needs a fifth man on the bench, and every day without Justice Kavanaugh is a wasted opportunity.

Right now, the main obstacle to Kavanaugh’s confirmation is Christine Blasey Ford’s allegation that the nominee assaulted her in high school. Her credible accusation has already delayed the process by several days as senators haggle over hearings. There is nothing suspicious about Ford’s timing. Nevertheless, the resulting delay in appointing a new justice will likely have an effect on a number of cases that are scheduled to come before the Supreme Court this fall.

On Oct. 1, the court will hear Weyerhaeuser Company v. U.S. Fish and Wildlife Service, an effort to weaken the Endangered Species Act. Weyerhaeuser Co. wants to harvest timber on a Louisiana site that serves as the habitat for an endangered species: the dusky gopher frog. The federal government won’t let it.

There’s a good reason why. The dusky gopher frog used to live in a large swath of the South, but there are now just 135 of them in the wild, all of whom can be found in a Mississippi pond. Outside of Mississippi, they were last spotted in the wild at a site in St. Tammany Parish, Louisiana, in 1965. While they no longer live there, the site still contains the “extremely rare ephemeral ponds on which the frog depends.” The government wants to restore the ponds and introduce the frogs. Weyerhaeuser Co., which owns the land, wants to chop down all the trees, destroying the habitat. So it sued, arguing that the Fish and Wildlife Service has no authority to halt its plans.

You may not care about the dusky gopher frog—though it is said to be a charming critter—but you should care about this case if you support the Endangered Species Act. That’s because Weyerhaeuser is merely the latest chapter in corporations’ endless war on the ESA. The timber industry has long sought to hobble the law by limiting the federal government’s ability to preserve land that’s vital for endangered species. If timber firms can persuade the courts to overrule the government’s determination regarding which habitats must be protected, they can open up more land to logging. That’s why Weyerhaeuser Co. is asking SCOTUS to hold that the government can’t set aside habitat unless it’s absolutely necessary for a species’ immediate survival.

Had Kavanaugh joined the court in late September, he probably would’ve cast the fifth vote in Weyerhaeuser condemning the dusky gopher frog to a near-certain demise. Now, the justices may instead divide 4–4, affirming the lower-court’s decision in favor of the U.S. Fish and Wildlife Service.

A day after the dusky gopher frog gets its day in court, the justices will turn to the death penalty. When the court hears Madison v. Alabama on Oct. 2, it will confront a grave question: May a state execute a death row inmate who, though competent when he committed his offense, is now so mentally disabled that he cannot remember the crime? Vernon Madison, the prisoner in question, is in his late 60s and has such severe dementia that he cannot recite the alphabet. The Supreme Court has already prohibited the execution of individuals who were intellectually disabled at the time of their offenses. Madison’s lawyers assert that its logic should extend to Madison, as no “penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”

There’s very little doubt that the conservative justices would permit Madison’s execution, while the liberal justices will oppose it. If they split 4–4, that’s bad news for Madison: The lower court rejected his argument, and he needs five justices to reverse that decision. But for other death row inmates, a SCOTUS logjam would certainly be better than a loss. Because most prisoners spend decades awaiting execution, America mostly executes seniors, many of whom have a variety of disabilities. Those who develop dementia, Alzheimer’s, and other mental disorders could continue to argue that their deaths at the hands of the state would violate the Constitution. Without Kavanaugh’s vote, this area of the law will remain unsettled. With his vote, the courthouse door may well shut on them for good.

On Oct. 3, one day after arguments in Madison, the court will hear New Prime Inc. v. Oliveira. This case marks yet another effort by corporations to prevent workers from filing lawsuits and instead shunt them into mandatory arbitration, which strongly favors employers. The Supreme Court has bolstered this corporate campaign in a series of preposterous 5–4 rulings. These decisions turned the Federal Arbitration Act, a 1925 law meant to speed up commercial disputes, into a blunt object that employers can use to kick workers’ lawsuits out of court.

Luckily, the Federal Arbitration Act has an exception for transportation workers, which, by its plain terms, should apply to both formal employees and independent contractors. The 1st U.S. Circuit Court of Appeals held precisely that in 2017, concluding that transportation companies could not use it to force independent contractors into arbitration. When the Supreme Court agreed the hear the case, it was obviously planning to reverse the 1st Circuit and crush this exception. But that can’t happen without Kavanaugh’s vote. And as a result, labor activists could avoid another catastrophe at SCOTUS.

Perhaps the most consequential case that could reach the justices in the coming weeks and months, however, is the Trump administration’s ban on transgender troops. As I reported in March, Trump’s ban was spearheaded not by the military, but by anti-gay activists allied with Vice President Mike Pence. Service members suing to block the policy have demanded access to documents pertaining to military deliberations over its implementation. If released, those documents could reveal that the ban is not driven by legitimate concerns.

After a federal district court ordered the government to prepare these documents for discovery, the Department of Justice asked the Supreme Court to step in. Its request was wildly premature since the court hadn’t even directed the DOJ to turn over the information, just to assemble it in advance. The DOJ stood down on Monday when the 9th U.S. Circuit Court of Appeals stayed the district court’s order. But the 9th Circuit will decide this case on a highly expedited schedule, with a possible ruling in October. (It’s expected to rule against the government.) At that point, the Justice Department could file an emergency motion with the Supreme Court to shield the documents, which are key to the plaintiffs’ case. Without Kavanaugh’s vote, the Trump administration is toast.

SCOTUS packed its October docket with significant cases with the expectation of a full court. Now it appears that Kavanaugh’s confirmation could be pushed back by a few weeks—and if he withdraws, the months-long nomination process would begin all over again. Republicans have a clear interest in briskly filling this slot. But by nominating a candidate as flawed as Kavanaugh, Donald Trump has unintentionally postponed the Supreme Court’s conservative revolution.