For the first time since Abraham Lincoln won re-election in 1864, the Supreme Court has a vacancy on the bench on Election Day. The new session starts Monday with just eight justices, and with a docket that as of yet avoids the kind of politically divisive cases reflecting the culture wars that the court took up in recent terms. Last term, four cases were decided—or left sort of in limbo—with 4-4 splits. The cases the court has decided to hear so far this term suggest they're trying to avoid that outcome this term.
There are already signs the justices are doing so, as shown by an uptick in intellectual property disputes they are hearing, including a major design patent battle between Apple Inc (AAPL.O) and Samsung Electronics Co Ltd (005930.KS), which will be heard on Oct. 11.
Cases on transgender rights and Republican-backed state laws that opponents contend were designed to suppress the turnout of black, Hispanic and other voters who tend to back Democrats potentially could be added to the docket, although those cases could lead to 4-4 ties. […]
The court on Thursday took up eight new cases, including another intellectual property fight over whether the Oregon-based Asian-American rock band The Slants can trademark its name despite the term's history as a racial slur.
Can you chip in $3 to each of these candidates to end Mitch McConnell's Senate leadership?
Are you a member of MoveOn? No matter where you live, help defeat Donald Trump and take back the Senate by texting MoveOn members in swing states to knock on doors where they live.
That case could determine the fate of the Washington, D.C. football team's name as well. The court has scheduled one race discrimination and predatory lending case for arguments on November 8, Election Day, but has not scheduled the arguments for a religious rights case it agreed to hear last year, before Scalia died. Other cases they have agreed to hear include a trademark case for cheerleading uniforms, a patent case for incontinence products, and a disability case that could allow a goldendoodle service dog named Wonder to go to school with his human, a little girl named Ehlena Fry with cerebral palsy. If and when the Supreme Court is back to full strength—probably not before February or even March of next year—cases could include transgender bathrooms, North Carolina's voter suppression laws, and whether several judges in the Wisconsin "John Doe" probe into possible criminal campaign finance violations by Gov. Scott Walker should have recused themselves.
Hanging over all of it is this bizarre election and the vacancy and even the possibility of a Republican-controlled Senate that continues to refuse a Democratic president's nominee. There's no guarantee at this point that Majority Leader Mitch McConnell is going to be more likely to allow a President Clinton to have her nominee(s) approved than he was President Obama's. It's remotely possible that, if Democrats win out in November, McConnell relents and allows a lame-duck approval of Merrick Garland, but he and Judiciary Chair Chuck Grassley have repeatedly said that's not going to happen. Then there's the real nightmare scenario—a contested presidential election that an eight-member court would have to decide.
Clearly, Democrats taking the Senate back is the best possible outcome for the Supreme Court—the most important aspect of this election (beyond keeping a mad man out of the White House). The backstop of a Democratic Senate is just too crucial to ignore.