Supreme Court starts hearing arguments Monday in the shadow of the uproar over Brett Kavanaugh

  • The Supreme Court will start hearing oral arguments on Monday amid a brutal partisan battle over Supreme Court nominee Brett Kavanaugh, who has wrestled with allegations of sexual assault from multiple women and whose confirmation now hangs in the balance.
  • If Kavanaugh is not on the bench to hear an oral argument, he will not vote on the case. That said, if his vote would prove decisive, it's likely that the court will simply have the case re-argued, as it has done in a number of previous vacancies.
  • On Monday the court will hear arguments on two cases, Mount Lemmon Fire District v. Guido and Weyerhaeuser Company v. U.S. Fish and Wildlife Service, or the "frog case."
Demonstrators protesting against Judge Brett Kavanaugh's nomination as an Associate Justice on the Supreme Court hold a rally outside the US Supreme Court in Washington, DC, September 28, 2018. 
Saul Loeb | AFP | Getty Images
Demonstrators protesting against Judge Brett Kavanaugh's nomination as an Associate Justice on the Supreme Court hold a rally outside the US Supreme Court in Washington, DC, September 28, 2018. 

The Supreme Court will start hearing oral arguments on Monday amid a brutal partisan battle over nominee Brett Kavanaugh, the man whose path to the nation's highest court has been blocked by an uproar over allegations of sexual assault.

The claims, made by several women, have put Kavanaugh's confirmation in the balance. The increasingly fractious and partisan process — in which Kavanaugh this week blasted lawmakers for pursuing "a calculated and orchestrated political hit" motivated by "revenge" — has been striking, particularly for a branch of government that generally tries to hold itself above politics.

On Friday, the chances of Kavanaugh being confirmed by the Senate in time to hear cases next week dimmed significantly. President Donald Trump ordering the FBI to conduct a "supplemental" background investigation that could last up to a week.

If Kavanaugh is not on the bench to hear an oral argument, he will not vote on the case. That said, if his vote proves decisive, it's likely that the court will simply have the case re-argued, as it has done in a number of previous vacancies.

Regardless of what happens to Kavanaugh, on Monday, only eight justices will assemble at the Supreme Court building. The last time the justices started a term with a vacancy was in 2016, following the death of Justice Antonin Scalia.

The court's upcoming term may lack the fireworks of the last, during which the court handed down blockbuster rulings on public sector unions, sexual orientation discrimination, and Trump's travel ban.

On Monday the court will hear arguments on two cases: Mount Lemmon Fire District v. Guido and Weyerhaeuser Company v. U.S. Fish and Wildlife Service, or the "frog case."

In Mount Lemmon, the opening case of the term, two former fire fighters have brought suit against a small Arizona fire district, alleging that they were discriminated against because of their age (one of the men was 46, and the other was 54).

The Mount Lemmon fire district has said that the layoffs were forced by a budget shortfall so intense the district resorted to bake sales. It will argue that the age discrimination statute doesn't apply, because it has so few employees.

The case has not sparked much political handwringing, and largely focuses on a narrow technical issue. The Solicitor General and the AARP have both weighed in on behalf of the former fire fighters.

The other case set for argument Monday may prove a bit more contentious. The so-called "frog case" has brought to the fore the plight of the dusky gopher frog, an embattled three-inch amphibian facing population decline for years. The population of approximately 100 adult frogs now mostly live around a single pond in Mississippi.

The government has a plan to resuscitate the dusky gopher frog by relocating it to some of its historical breeding grounds. That has put it at odds with the Weyerhaeuser Company, a homebuilding giant and one of the world's largest private owners of timberlands. The company happens to own some of the land the government designated "critical" for the frog's unusual breeding habits in 2012.

The case is a rare example of the court taking on the Endangered Species Act, a sweeping 1973 environmental law, which has some environmentalists worried that a conservative-leaning court could limit its broad reach.

That worry is exacerbated by the potential replacement of Justice Anthony Kennedy, who largely ruled in favor of environmental interests. For his part, Kavanaugh has been criticized by environmental groups for largely siding with business.

Kavanaugh is likely to miss oral arguments in several other crucial cases on next week's docket, including Madison v. Alabama, one of two major death penalty cases the court has already agreed to take up; and New Prime Inc. v. Oliveira.

In Madison, the court will decide whether it is permissible for the government to execute a man who is suffering from dementia so severe that he cannot remember committing the crime for which the state seeks to execute him.

New Prime, which is being closely watched by both conservative and liberal legal groups, will address which categories of employees can be forced into arbitration.

Notably, the case could be the first this term to have ramifications for the "Me Too" movement, which "has brought new attention to how forced arbitration limits the ability of employees to come together to challenge sexual harassment at work," according to Emily Martin, the vice president for education and workplace justice at the National Women's Law Center.

Martin said her organization is watching two other arbitration cases that will show up later in the term: Lamps Plus Inc v. Varela, and Henry Schein Inc. v. Archer and White Sales Inc.