The impact of the eight-member court on the law may be minimal at first, but the ‘four-four split’ may change the way the justices communicate their decisions

When the justices of the US supreme court take their seats on Tuesday morning for the first set of oral arguments of their 2016-2017 session, many court-watchers will have their eyes more on the makeup of the court than the cases themselves. Since Justice Antonin Scalia’s death in February, the nine-seat court has had only eight members, while Senate Republicans have refused to consider Barack Obama’s pick, Judge Merrick Garland.

Having only eight members of the court means that, theoretically, any and every case could result in a tie between the court’s four remaining conservative members and the liberals, even in those cases expected to resolve disparities in lower courts’ rulings.

Renee Cramer, a professor of law, politics and society at Drake University, cautioned that the effects of the eight-member court on the law – at least at the beginning of this term – are likely to be minimal. “The political implications are probably greater than the judicial implications,” she said.

“The four-four split wasn’t changing decisions incredibly” in the wake of Scalia’s death, she explained. “But it was maybe changing the way that those decisions were communicated.”

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“They appear to be appealing to a desire not to be seen as overreaching,” she added, issuing rulings “more narrowly tailored to the specific instances”.

Of the 19 cases currently scheduled for oral arguments, here are six that could have the broadest implications.

Buck v Davis

Duane Buck shot and killed his ex-girlfriend and her friend in Texas in 1995 and was convicted; the case before the court challenges his death penalty sentence. During the penalty phase of his trial, Buck’s defense attorney – called one of the worst defense lawyers in capital cases in the country – brought to the stand an expert witness intended to demonstrate to the jury that Buck was not a continuing threat to the community, a key standard for imposing the death penalty. Instead, the defense introduced the testimony of Dr Walter Quijano, who wrote that, statistically speaking, Buck was more likely to commit crimes in the future because he is black.

He was sentenced to death, and appealed on the grounds that his counsel had been ineffective, though not because his lawyer introduced Quijano’s testimony.

The state of Texas later admitted before the supreme court that Quijano’s testimony was prejudicial. But the state objected to the challenge of Buck’s death sentence because his own lawyer introduced the evidence, and because prosecutors do not believe that the circumstances of Buck’s sentencing rise to the level of extraordinary circumstances.

The court may decide the case on either question.

Peña-Rodriguez v Colorado

Miguel Angel Peña-Rodriguez was convicted on three misdemeanor counts of sexually harassing two teenage girls. But after the trial ended, it emerged that one of the jurors – a former police officer – had made several racist comments about Mexicans during deliberations. Among other things, he told his fellow jurors that Mexican men were more inclined to commit sexual offenses against women than white Americans.

Peña-Rodriguez challenged his conviction, arguing that he has a right to an impartial jury under the sixth amendment. But he’s been stymied by laws that prohibit jurors from talking about what happens during deliberations.

The court is expected to hear arguments on 11 October that Peña-Rodriguez’s right to a jury free of racial prejudice ought to trump laws that prohibit jurors from testifying about their own lack of impartiality.

Manuel v City of Joliet

Elijah Manuel attempted to sue the city of Joliet, Illinois, in federal court after he was arrested for possession of ecstasy based on evidence falsified by the police and was held for nearly two months. He claimed the city had violated his constitutional right against illegal search and seizure under the fourth amendment.

The federal judge who heard his case dismissed it: in the federal courts in the district that covers the state of Illinois, lawsuits against the authorities for false arrest or false imprisonment have to be heard in state courts, where plaintiffs have more difficulty winning. (In most other federal districts, these suits can be heard in federal court first.)

Manuel appealed, and the appeals court judges ruled again that he should have filed in state court and added that he should have filed within two years of his arrest, instead of within two years of his release – a standard which would make it even more difficult to sue.

If the supreme court sides with Manuel, it would become easier for everyone in Illinois – including in the city of Chicago, which faces a variety of allegations of police misconduct – to sue for relief in federal court.

Samsung v Apple

In what may be the final chapter of the expensive and long-running international patent war between the two smartphone behemoths, Samsung is asking the supreme court to decide the appropriate amount of damages for an alleged violation of Apple’s design patents. Oral arguments are scheduled for 11 October.

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To recap: in 2012, a jury decided Samsung had infringed upon three of Apple’s iPhone design patents, which are awarded on the basis of the uniqueness of a product’s aesthetics, not its function. In the penalty phase, based on an 1886 law, Apple was awarded $1.2bn – the entirety of Samsung’s profits on the allegedly infringing phones – though the award was reduced to $584m on appeal.



Samsung argues the majority of a smartphone’s value is in its utility, not in its design (in this case, its bevelled corners and black back side), and thus awarding all its profits on the sales of the phones to Apple based on a design infringement on only three components is a misreading of the law. The court is being asked to decided whether the violation of a design patent on a complex product should trigger an award for the entire value of the product.

Bank of America v City of Miami and Wells Fargo v City of Miami

The city of Miami attempted to sue Bank of America, Wells Fargo and Citigroup (which did not pursue the supreme court appeal) for violations of the Fair Housing Act.

The city claims the lenders drove a wave of foreclosures that cost the city, by engaging in predatory lending to minority borrowers and offering worse refinancing rates to minorities.

The banks successfully argued in federal district trial court that the city could not sue because it was not immediately harmed by the banks’ actions, but the city won on appeal. The supreme court will hear arguments on 8 November (Election Day) to decide whether a city can serve as a valid plaintiff in a discriminatory lending case.

Lynch v Morales-Santana

On 9 November – immediately after the presidential election – the court will hear arguments about whether the laws that govern citizenship discriminate based on the gender of the parent.

At issue is the citizenship of Luis Morales-Santana, who was born in the Dominican Republic to a father born in the US and a mother who was a non-US citizen. Under the laws at the time of his birth (prior to 1986), children born to unmarried parents outside the US would get citizenship if their mothers had lived in the US for a year. But they would not get citizenship via fathers born in the US unless the father had lived there for 10years, including and five years after the age of 14. (After 1986, the standard became five years for fathers, two after the age of 14.) Morales-Santana’s father was 20 days shy of the limit when he moved to the Dominican Republica, and the government is attempting to deport Morales-Santana.

The court has been asked to decide whether the citizenship laws are a violation of the fifth amendment’s equal protection clauses because they differ based on gender. It’s also being asked to decide whether the appeals court had the right to grant Morales-Santana citizenship at all.