Last Friday, the Supreme Court released its schedule of oral arguments for December. Notably missing was a potentially far-reaching religious liberty case called Trinity Lutheran Church of Columbia v. Pauley, which has the potential to weaken church-state separation provisions in state constitutions. As we stated in our September preview of the Court’s current term:
Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran Church … But now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.
So it was disappointing but not surprising given the continuing vacancy on the Court to see another month’s schedule of oral arguments skip over this case. Moreover, the Court’s difficulties show up in other ways, too, as SCOTUSBlog’s Amy Howe noted late last Friday:
[T]he most interesting part of the December calendar may be what cases were not on the calendar: the three cases – Trinity Lutheran Church v. Pauley, Murr v. Wisconsin, and Microsoft Corporation v. Baker – that were granted in January of this year, before the death of Justice Antonin Scalia. Because cases are normally slotted for oral argument in at least roughly the order in which they were granted, the delay in scheduling these three cases is unusual. This is particularly true when all three cases have been fully briefed for over two months. Moreover, the court has four days in the December sitting which it will only hear one argument and could thus easily accommodate an additional three arguments. All of the cases on the December calendar were granted … in June; with the release of today’s calendar, all of the cases in which the court granted review before its summer recess have now been scheduled for oral argument except for the three January cases.
The Washington Post PowerPost column accurately called this “a bare-bones calendar.”
The justices are saying through their calendar what they would never say so bluntly: “We cannot perform our duties to decide certain important cases as long as the Republican-controlled Senate deliberately sabotages the Court.”
The senators certainly have a lot of important work to do after the election during the lame duck session. Fair consideration and a vote on Merrick Garland should be the easiest.