If you've ever read a judicial decision you know courts usually begin with a statement asserting their jurisdiction -- their legal authority to hear the case. Usually this is a formality; usually no one questions the court's jurisdiction. Usually -- but not always.
As DTN Staff Reporter Todd Neeley reported the other day, jurisdiction was THE issue in the latest ruling on the Waters of the United States rule. And in the wake of the death of Supreme Court Justice Antonin Scalia, jurisdiction is likely to play a critical role in many more cases, this year and perhaps for many years to come.
The EPA's WOTUS rule, which is being challenged by farm groups and states, attempts to redefine which waters the Clean Water Act covers. The U.S. Sixth Circuit appeals court in Cincinnati ruled it has jurisdiction over the challenges.
In this case, the question was whether federal district courts -- the level below the Sixth Circuit -- should have been the ones to rule on WOTUS. In many future cases, the critical point will be which of the 13 circuit courts makes the decision. To understand why, you need to know three things.
First, with Scalia gone, the U.S. Supreme Court may operate with only eight justices for some time. Republican senators have vowed not to approve any Scalia successor President Barack Obama nominates.
Don't assume that once a new president is elected, a new ninth justice will start hearing cases in 2017. Whoever wins the presidency in November and whichever party takes the Senate, the outlook for approving new justices will remain bleak.
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Unless one party wins 60 Senate seats, which isn't likely, the other party can and likely will block Supreme Court appointments by filibustering. Both parties consider the high court's ninth seat too important to let the other fill it. A growing number of expert observers, both liberal and conservative, fear the high-court vacancy will be open indefinitely.
Point Two: Judging from the record, these eight Supreme Court justices will deadlock four-four on many sensitive cases. With Scalia, the court often voted 5-4 conservative. Now there are four liberals and four conservatives. The dividing line isn't hard and fast -- in particular, one of the conservatives, Justice Anthony Kennedy, sometimes votes with the liberals. But it's hard enough that there will be plenty of four-four ties.
Point Three: When there are ties, the Supreme Court's tradition is to let the lower-court decision stand, typically in an unsigned one-sentence ruling. The holding in the case sets no national precedent.
Assuming these three points are correct, the country will be left with a Supreme Court that cannot perform one of its vital functions: deciding "the law of the land" when different federal appeals courts have issued conflicting judgments on the same legal issue.
That will exacerbate litigants' tendency to go "forum shopping" for the court they deem most likely to be sympathetic. On any number of sensitive issues, from abortion to environmental regulation, federal and even constitutional law could end up being different in different parts of the country.
What would it take for the country to slip out of this trap and get a ninth justice confirmed? If the same party wins the presidency and the senate, the Senate Majority Leader could exercise the so-called "nuclear option" and change the senate rules to prohibit filibusters of Supreme Court approvals.
It's called the nuclear option because the Senate has traditionally prided itself on respecting minority rights. Any abridgment of them is considered akin to using the ultimate weapon.
But if it happens it won't be a first. In 2013, when the Democrats controlled the Senate, Majority Leader Harry Reid pushed through several of President Obama's appeals-court nominees using the nuclear option.
The lure of a deciding vote on the Supreme Court might tempt a triumphant Democratic Senate to try it again -- or tempt a Republican-majority Senate to reciprocate with a nuclear blast of its own. There's no predicting, though, if and when that might happen.
One thing we can be sure of is that eventually another justice will leave the court, unknotting the ties. But that could be years away.
In the meantime, where a case is filed -- which lower court has jurisdiction -- will be more important than ever.
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