Lawyer Donald Scarinci, opining on the PolitickerNJ site, writes that the 2016 presidential race is really about which party will be in power to appoint a new Supreme Court Justice. But he notes, with the current polarization of politics, that the next president won't be able to select an ideological twin for the court. "Like those before them, the ultimate nominee will likely be an excellent jurist whose views on significant constitutional issues tend to stay in the middle of the road," Scarinci opines.
The U.S. Supreme Court will wrap up its term a week from today, and there are several major cases left to be decided, USA Today reports. A couple highlights of issues to be decided:
One, what is the scope of the presidential power to make appointments when the Senate is in recess?
Two, can the Environmental Protection Agency change the threshold for greenhouse gas emissions?
Three, can shareholders alleging securities fraud rely on the assumption that stock price reflects all available information instead of having to prove specifically that fraud affected stock prices?
The U.S. Supreme Court's decision on whether it is constitutional for the president to make appointments during legislative recesses will not only have a big impact on the separation of powers. A decision rejecting recess appointments will upend hundreds of labor disputes decided by the National Labor Relations Board, The Washington Post reports. '“Regardless of whether you’re in the business community or organized labor, you want to know that the agency is operating with legal authority,' said Steven Bernstein, a labor lawyer who represents employers. 'You want to get it right the first time and make the results stick so you don’t face the possibility of waking up and doing it all over again,'" The Post further reports.
Whether history and what the Founding Fathers thought about things controls how we interpret the American Constitution is going to get another ride in the U.S. Supreme Court in the upcoming term. USA Today reports on the historical issues implicated in the case in which the justices will decide the constitutionality of the president making appointments during Congressional recesses: "For two centuries, presidents have found ways to get around Congress in order to fill important positions in their administrations. Now the Supreme Court is set to decide if what's common is constitutional. Sound backwards? Perhaps. When it comes to the law, however, history isn't always the best guide. Take prayer: When the justices in November debated the practice of opening government meetings with an invocation, which dates back to the framers of the Constitution, they were forced to consider whether that tradition trumps the separation of church and state. Or marriage: Presented last year with a modern interpretation of a male-female institution that Chief Justice John Roberts noted 'has been around since time immemorial,' the justices had a tough time justifying the exclusion of gays and lesbians. Now comes an epic balance-of-powers battle between the executive and legislative branches that only the judicial branch can resolve. On Monday, what's been billed as the marquee case of the high court's 2013 term will give the justices a chance to decide if George Washington and many of his successors violated the Constitution they swore to uphold."
The National Law Journal's Marcia Coyle reports on the U.S. Supreme Court's spring 2014 term: "The term may seem a little blockbuster-light compared with back-to-back historic terms involving health care, immigration, same-sex marriages and voting rights. But there are a number of headline grabbers and the new year brings two possible game changers for the executive branch," including on the issue of whether the president has the power to make appointments during Congressional recesses.