In the Two Minute Drill, we explain complex issues in politics in 500 words or less (roughly the amount of words it takes the average adult two minutes to read on a monitor). Politics just isn’t always that complicated. Without the fluff and partisan bias, even the most complex of our political differences can be explained succinctly. This week: know your rights when recording the police. This is The Two Minute Drill for March 4, 2016.
On February 13, 2016, Justice Antonin Scalia unexpectedly passed away at the age of 79, vacating a seat on the Supreme Court that he had held for nearly 30 years. Supreme Court vacancies that arise in presidential election years rarely occur, and there have been suggestions that Justice Scalia’s successor may not be confirmed for several months, let alone before the fall election. As a result, there is the strong possibility that Justice Scalia’s seat may remain open for an extended period of time, including throughout the remainder of the 2015 Supreme Court term. What does this mean for the Court? And how will the Court function?
The Explanation (500 or Bust)
The Supreme Court does not need nine Justices to decide a case. The size of the Court, in fact, has varied throughout history, with the Court shrinking to five judges following the passage of the Judiciary Act of 1801 and growing to as large as 10 judges after the enactment of the Judiciary Act of 1863. Instead, Congress has established quorum requirements for the Court, providing that any six Justices “shall constitute a quorum” permitting the Court to rule on a case.
Where there is a quorum of Justices, the agreement of a majority of the quorum is necessary to act for the Court. As a consequence, an eight-member Court presents the possibility of split votes, where a majority cannot agree on the outcome in a given case. When the quorum of Justices is evenly divided (four to four or three to three), the Court has adopted two approaches. First, if the participating Justices are equally divided on the merits of a case, the Court’s practice has, at times, been not to write an opinion, but to enter a judgment that tersely affirms the lower court judgment without any indication of the Court’s voting alignment. Such an order, however, has no precedential value. Second, the Court could order reargument of the case sua sponte or on its own volition prior to issuing a decision on the merits. In addition, an unsuccessful petitioner could petition the Court for a rehearing in anticipation of a Court with a changed composition.
Where there is an absence of a quorum, Congress has delineated the procedures to be followed which differ depending on the route the case took to arrive on the Court’s docket. The majority of cases arrive at the Supreme Court from the lower appellate courts or are a part of the Court’s original jurisdiction. In these cases, Congress has established that “the court shall enter its order affirming the judgment of the court from which it was brought for review . . . .”
But a small number of cases (mostly involving redistricting and campaign finance) come to the Court through a direct appeal after being heard initially by a a three-judge district court. If the Supreme Court cannot meet to rule on a case on direct appeal because of the absence of a quorum, Section 2109 of Title 28 permits the Chief Justice to remit the case to the court of appeals for the circuit that encompasses the district in which the case arose. Upon remittance to the appellate court, a panel of three senior circuit judges hears the case and renders a “final and conclusive” decision.
Word Count: 436
THE FIVE: Here are the five best things we’ve read all week.
- Hands Up. Last week, Marco Rubio said said that Donald Trump has small hands and implied that he also has a small penis. “He’s like 6’2″, which is why I don’t understand why his hands are the size of someone who’s 5’2″. Have you seen his hands? And you know what they say about men with small hands.” Well, Trump didn’t take that lightly, and at Thursday night’s Fox News debate in Detroit Donald Trump said that his hands are not small and implied that his penis is not small either. The transcript: “He hit my hands. Nobody has ever hit my hands. I have never heard of this. Look at those hands. Are they small hands? And he referred to my hands – if they are small, something else must be small – I guarantee you there’s no problem. I guarantee you.” Bleh. Am I dreaming? Please wake me up from this nightmare.
- Antonin the Money. “Growing political uncertainties due to recent events with the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class-action suits have changed Dow’s risk assessment of the situation.” From Jef Feeley at Bloomberg: Scalia’s Death Prompts Dow to Settle Suits for $835 Million.
- Espresso Love. “I came home from a trip the other day with a small plastic bag filed with 4 ounces of brown powder that, truth be told, made me a little nervous . . . I didn’t dare open that bag. It contained crude caffeine, about 90 percent pure. That small bag held as much caffeine as 1,000 tall lattes from Starbucks, or 2,000 cans of Coke or Pepsi. It was enough to kill several people.” From Dan Charles at NPR: Caffeine for Sale: The Hidden Trade of the World’s Favorite Stimulant.
- Placed on Hold. “Known for its nearly carbon-neutral cities, its free health care and university education for all, its bus drivers who are paid like accountants, its robust defense of gay rights and social freedoms, and its vigorous culture of social and political debate, the country has long been envied as a social-democratic success, a place where the state has an improbably durable record of doing good.” So why aren’t they open to immigrants? From Hugh Eakin at the NYRB: Liberal, Harsh Denmark.
- Killing Fields. “Hikmatullah Shadman, an Afgan trucking-company owner, earned more than a hundred and sixty million dollars while contracting for the United States military.” From Matthieu Aikins in The New Yorker: The Bidding War: How a Young Afghan Military Contractor Became Spectacularly Rich.
And in case you missed it, check out The Weekly Column. This past week took a look at the rise of Donald Trump as a political candidate and what it reflects about our political system. Read the Column for March 1, 2016 – Anti-Intellectualism and the Rise of Donald Trump.