The U.S. Supreme Court has begun its new term, just weeks after Justice Ruth Bader Ginsburg passed away. The Massachusetts Supreme Judicial Court is also resuming oral arguments this week for the first time following the passing of Justice Ralph Gants. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about what these absences could mean for the courts. The transcript below has been edited for clarity.
Joe Mathieu: First of all, President Donald Trump has nominated Amy Coney Barrett to succeed Justice Ginsburg, as we discussed last time you were here. And the timing of that process has become pretty unclear because of this massive spread of COVID throughout the White House and Republicans, specifically members of the judiciary. Assuming that the court proceeds with only eight justices for a while, what does that mean in terms of the balance of power on the court [and] the consequences of those decisions?
Daniel Medwed: Well, in terms of the balance of power, the conservative wing retains a very decisive advantage, five to three. Prior to Justice Ginsburg's death, Chief Justice Roberts very much represented the swing vote and he would occasionally side with the liberals in high profile cases, including famously to defend the Affordable Care Act and to recognize a constitutional right to same-sex marriage. Now, Roberts' vote alone is not enough for the liberal faction to prevail. They have to lure one among Alito, Thomas, Gorsuch and Kavanaugh into the fold, and that's a tall order, especially with some of the social issue cases looming on the Supreme Court docket.
What that means in terms of consequences is, best case scenario for the liberals: they lure Roberts to their side and it produces a four-four vote, which under Supreme Court procedures typically means that the lower court decision in the case stands. When there's a tie, that lower court decision, whether it's from a federal intermediate appellate court or from a state Supreme Court, whatever that decision was before the case percolated to the U.S. Supreme Court, that becomes the ruling in the case. So I'm going to be looking at those cases very carefully this term, given the likelihood of a number of ties — four-four decisions.
Mathieu: Let's go local here. We'll turn to the SJC, Daniel. That court usually has seven justices, which means that we are now down to six. You think that Chief Justice Gants' death will have a similar effect here in the SJC, that it tilts the balance of power more in favor of the right or the left?
Medwed: Well, not necessarily, and here's why. To his credit, Ralph Gants was really hard to pigeonhole politically. I've said this before and I'll say it again: I don't think he belonged to the Democratic or the Republican Party, but to the party of justice. A little bit hokey, I admit, but he was a progressive on a number of fronts and a real champion for the underdog. But he was also a former prosecutor who was first appointed to the state trial court by Republican Gov. Bill Weld. At bottom, he was a pragmatist. He was a problem solver, not an ideologue. And I think that's what earned him such well-deserved and widespread respect across the aisle. It's also what makes it very hard to predict what his absence will mean in terms of the trajectory of the SJC's decisions.
Mathieu: Barbara Lenk is due to retire, as well. That would give Governor Baker a chance to make a seventh appointment. So every justice is a Baker appointee?
Medwed: Yes.
Mathieu: That's a pretty big deal.
Medwed: It is a big deal, and my reaction is something that a lot of people are saying these days, which is elections have consequences. And electing a Republican governor, even a purported moderate like Charlie Baker, means that the composition of our SJC, especially in terms of its ideology, has dramatically shifted from what it looked like when it was full of Deval Patrick's appointees.
Four of Governor Baker's five appointments to the SJC so far are former prosecutors, and none of the five have any significant criminal defense practice experience to speak of. That very well may change. He's getting a lot of pressure, understandably so, to appoint a more progressive voice and someone with defense experience with at least one, or maybe both, of these looming appointments. And I think that would be a good thing. We need more ideological and experiential diversity on the court when it comes to the issue of criminal justice.
