Vail Daily column: Supreme Court deadlocks hinder us all | VailDaily.com

Vail Daily column: Supreme Court deadlocks hinder us all

The Supreme Court is sort of like a soccer match. Only the rules are different. In a soccer match, when the game ends in a tie, then each team gets a point instead of the two points either would have earned with a victory or the skunking that comes with a loss.

Although the Supremes can tie, when the court locks up, mixing my sports metaphors, in effect, the court "punts."

Article III, Section 1 of the United States Constitution holds that, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

Nine in number, the United States Supreme Court is comprised of a chief justice (currently Justice Roberts) and eight associate justices.

As you likely know, one of the privileges of the presidency is the right to appoint Supreme Court justices. However, there's a catch. Well, two catches, really.

First, Supreme Court justices are really nominated, rather than appointed by the president. Second, as a justice of the United States Supreme Court serves for life, it can well be that no vacancy comes about on the bench during a presidential term.

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Or, as now, a vacancy has occurred — with the recent and untimely death of Justice Antonin Scalia — and with no intended disrespect or political slanting — the Republican Senate is refusing to act on President Obama's seemingly uncontroversial nominee, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit Merrick Garland.

For a case to be tried in federal court, there must be diversity jurisdiction and the amount in dispute must be at least $75,000. Diversity jurisdiction means, simply, that the disputants must be citizens of different states.

Appeal from trial is taken to the Circuit Court of Appeals and then may advance to the United States Supreme Court. I use the word "may" as it is not a matter of right that a matter will be heard by the Supremes. Rather, the Supremes accept a matter for consideration upon a writ of certiorari (known among lawyers as simply "on cert"). On cert means that the court has determined to hear a matter which has been appealed to it.

As a practical matter, the Supremes grant cert to less than 1 percent of the appeals submitted to it and, generally speaking, the court grants cert to hot-button issues, developing areas of law and matters which, if heard, might help in resolving conflicting decisions which have been rendered in similar cases in the various circuits.

While the executive steers policy and the legislative branch creates law, it is up to the Supremes to interpret the law, always in the context of Constitutional authority and permissibility. Accordingly, as the United States Supreme Court is the final arbiter of the laws, having justices appointed to the court who share a president's philosophy of governance and Constitutional construction is a key legacy of any administration.

When a vacancy occurs upon the court, either by death or retirement, then the president nominates a replacement to the Senate. Pursuant to Article II, Section 2, Clause 2 of the Constitution, the role of the Senate is to provide its "advice and consent" to a nomination. Key Senators, particularly those on the Judiciary Committee, are typically consulted in advance by the White House about potential nominees. After a nomination is made, it is assigned to the Senate Judiciary Committee. The committee holds a public hearing and a subsequent vote is taken to report the nomination to the full Senate. A majority vote of the Senate is required to confirm a nominee. If confirmed, then the nominee is appointed to the court.

In the recent immigration case, the court was asked to overturn a lower court ruling in a case challenging Obama's immigration plan. Lacking a deciding ninth vote, the court deadlocked 4-4, the effect of which was to leave the lower court ruling undisturbed, effectively ending what Obama had hoped would become one of his central legacies.

The program would have shielded as many as 5 million undocumented immigrants from deportation and allowed them to legally work in the United States. The 4-4 tie left in place an appeals court ruling blocking the proposed plan.

When the Supreme Court bench is short, then deadlocks simply can't be broken. In the end, that disserves the interests of justice, the Constitutional intent and the welfare of us all.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at robbins@slblaw.com and robbins@colorado.net.