Wednesday, September 30, 2020

Fact Check: Transcript Shows Trump Agreed to Condemn White Supremacists; ‘Stand By’ Followed Wallace’s Prompt

 

Fact Check: Transcript Shows Trump Agreed to Condemn White Supremacists; ‘Stand By’ Followed Wallace’s Prompt

Trump Wallace (Scott Olson / Getty)
Scott Olson / Getty
4:50

CLAIM: President Donald Trump told white supremacists like the Proud Boys to “stand by” and did not condemn them.

VERDICT: DECEPTIVE EDIT. The transcript shows Trump said “sure” when asked to condemn white supremacists. The “stand” language came from the moderator, and the “Proud Boys” were first brought up by Democratic nominee Joe Biden.

Critics of the president are claiming, incorrectly, that he would not condemn white supremacists at the first presidential debate.

First of all, the question itself, from moderator Chris Wallace, was absurd: Trump has condemned white supremacists repeatedly.

Asking him to condemn them (the “again” was never acknowledged) — and refusing to accept Trump’s assurances — was both ill-informed and inflammatory.

Four things are clear from the transcript below:

  1. Wallace refused to accept “sure” for an answer and demanded Trump (and only Trump) condemn extremists onstage.
  2. Wallace is the one who introduced the “stand down” language — not Trump, who was doing what he was asked.
  3. Biden is the one who demanded Trump condemn the “Proud Boys” — a right-wing group — and Trump complied.
  4. Biden refused to condemn Antifa, saying it was “an idea, not an organization.” Wallace then tried to end the argument.

The transcript, amid the crosstalk, reveals the truth (emphasis added):

Wallace: You have repeatedly criticized the vice president for not specifically calling out Antifa —

Trump: That’s right.

Wallace: — and other left-wing extremist groups. But are you willing, tonight to condemn white supremacists and militia groups —

Trump: Sure.

Wallace: — and to say that they need to stand down and not add to the violence in a number of these cities as we saw in Kenosha, and as we’ve seen in Portland.

Trump: Sure, I’m willing to do that.

Wallace: Are you prepared specifically to do it.

Trump: I would say —

Wallace: Go ahead, sir.

Trump: I would say almost everything I see is from the left wing not, not from the right wing.

Wallace: So what are you — what are you saying?

Trump: I’m willing to do anything. I want to see peace.

Wallace: Well, then, do it, sir.

Trump: I am —

Biden: Say it. Do it. Say it.

Trump: Do you call them — What do you want to call them? Give me a name. Give me a name.

Wallace: White supremacist — and right-wing militia.

Trump: Go ahead. Who would you like me to condemn?

Biden: White supremacists. The Proud Boys.

Trump: Who.

Wallace: White supremacists and right-wing militia.

Trump: Proud Boys, stand back and stand by. But I’ll tell you what, I’ll tell you what. Somebody’s got to do something about Antifa and the left. Because this is not a right-wing problem —

Biden: His own — his own FBI director said —

Trump: –this is a left-wing problem. This is a left-wing problem.

Biden: — the threat comes from white supremacists. Antifa is an idea, not an organization.

Trump: Oh, you gotta be kidding.

Biden: Not militia. That’s what his FBI —

Trump: Oh, really, FBI, OK.

Biden: His FBI director said.

Wallace: Gentlemen, we’re gonna —

Trump: Well, then he’s wrong.

Wallace: No, no. We’re done, sir.

The worst that Trump can be accused of is trying to change the subject — which he was entitled to do, given the faulty premise of the question. No matter how many times Trump condemns white supremacists, the media pretend he never did.

It is simply untrue to claim that Trump refused to condemn white supremacists, or that he tried to encourage them by telling them to “stand by.” Claims to the contrary rely on deceptive edits that omit what Trump, Wallace, and Biden actually said.

The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court

 

The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court

The Death of Justice Ruth Bader Ginsburg:
September 28, 2020
Procedural Issues on an Eight-Justice Court
Caitlain Devereaux Lewis
On September 18, 2020, Justice Ruth Bader Ginsburg passed away at the age of 87, vacating a
Section Research Manager
Supreme Court seat she held for 27 years. Prior to the death of Justice Antonin Scalia in February

2016, the last Supreme Court vacancy that occurred during a presidential election year happened
in 1968, when Chief Justice Earl Warren submitted a resignation letter less than six months

before the general election, but later agreed to remain on the Court until his successor was
named. The last time a Supreme Court vacancy arose in an election year and the Senate approved a new appointee to the
Court in that same year was 1932, when the seat vacated by Justice Oliver Wendell Holmes’s retirement in January 1932 was
filled by Justice Benjamin Cardozo two months later.
The Supreme Court’s October 2020 Term is set to begin on October 5; thus, it is likely the Term will at least begin with only
eight Justices. While the Supreme Court is composed of nine Justices, it does not require nine Justices to decide a case.
Instead, Congress established that any six Justices constitute a quorum for the Court, and agreement among the majority of a
quorum is generally necessary for the Court to act. Congress has also delineated procedures to follow if the Supreme Court
cannot hear or decide a case because of the absence of a quorum.
A Supreme Court consisting of an equally divided number of sitting Justices raises the possibility that the Court may be
equally divided as to a given case’s outcome. In the absence of a full Court, when the quorum of Justices is evenly divided,
the Court has generally taken one of two approaches. First, if the participating Justices are equally divided on a case’s merits,
the Court’s practice has been, at times, not to issue an opinion but instead to enter a judgment affirming the lower court’s
judgment (i.e., a summary affirmance) without indicating the Court’s voting alignment. Second, in lieu of issuing a summary
affirmance of the lower court opinion, the Court could instead order reargument of the case.
The Supreme Court possesses inherent authority to order the reargument of a case sua sponte (i.e., of its own volition). The
Court has exercised this authority after identifying additional issues for consideration or determining that more time is needed
to resolve a case. The Court has also ordered reargument in instances where the Court is equally divided, and holding the
case over for reargument could allow a new Justice to cast the deciding vote to create a majority opinion. It is also not
unprecedented for the Court to order reargument following the installment of new Justices, even if there is not an equal
division among the sitting Justices, as in cases of special import or significance. In addition, as evident from the recently
concluded October 2019 Term, the Court has authority to postpone arguments, as it did for all arguments scheduled for
March and April 2020 due to the COVID-19 pandemic.
The Supreme Court is scheduled to hear a number of cases during the upcoming term of interest to Congress, and the nation
as a whole, but in light of Justice Ginsburg’s passing, the details of how the Term will proceed remain unclear. To the extent
the Court proceeds with eight Justices, raising the possibility of cases resulting in a split vote, the statutes, rules, and practices
governing the High Court give it significant authority and discretion to determine whether to issue an order summarily
affirming a lower court’s ruling, or to allow a case to be reargued with a new Justice participating in the ruling and settling
the split on the Court.
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Contents
Introduction ..................................................................................................................................... 1
Supreme Court Composition ........................................................................................................... 2
Quorum Requirements .............................................................................................................. 3
The Court with Fewer Than Nine Justices ................................................................................ 4
Legal Consequences of an Equally Divided Court ................................................................... 5
The Term Ahead .............................................................................................................................. 8
Conclusion ..................................................................................................................................... 10

Contacts
Author Information ........................................................................................................................ 10

Congressional Research Service


The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court

Introduction
On September 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the
Supreme Court of the United States, passed away at the age of 87, vacating a Supreme Court seat
she held for 27 years.1 Article II of the U.S. Constitution gives the President2 the authority to
appoint judges to the Supreme Court with the Senate’s advice and consent.3 In a statement issued
shortly after Justice Ginsburg’s passing, Senate Majority Leader Mitch McConnell stated that
“President Trump’s nominee will receive a vote on the floor of the United States Senate.”4
Prior to the death of Justice Antonin Scalia in February 2016—creating a vacancy filled by
Justice Neil Gorsuch in April 20175—the last Supreme Court vacancy that occurred during a
presidential election year happened in 1968, when Chief Justice Earl Warren submitted a
resignation letter less than six months before the general election, but later agreed to remain on
the Court until his successor was named.6 Chief Justice Warren’s seat was filled the following
year by Chief Justice Warren Burger.7 The last time a Supreme Court vacancy arose in an election
year and the Senate approved a new appointee to the Court in that same year was 1932, when the
seat vacated by Justice Oliver Wendell Holmes’s retirement in January 19328 was filled by Justice
Benjamin Cardozo two months later.9

1 Press Release, Supreme Court of the U.S., Press Release Regarding Justice Ginsburg (Sept. 18, 2020),
https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-18-20.
2 For a discussion of the President’s selection of Supreme Court justices, see CRS Report R44235, Supreme Court
Appointment Process: President’s Selection of a Nominee
, by Barry J. McMillion; id. at 8 (“Virtually every President is
presumed to take into account a wide range of political considerations when faced with the responsibility of filling a
Supreme Court vacancy. For instance, most Presidents, it is assumed, will be inclined to select a nominee whose
political or ideological views appear compatible with their own.”).
3 U.S. CONST. art. II, § 2, cl. 2. For a detailed examination of the Senate’s role in the confirmation process, see CRS
Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by Barry J. McMillion;
CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by
Barry J. McMillion; id. at 2 (“While the U.S. Constitution assigns explicit roles in the Supreme Court appointment
process only to the President and the Senate, the Senate Judiciary Committee, throughout much of the nation’s history,
has also played an important, intermediary role. . . . Since the late 1960s, the Judiciary Committee’s consideration of a
Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage,
followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the
full Senate.”).
4 Derek Hawkins, et al., Trump, Clinton and Obama Respond to Ginsburg’s Death As Political Fight Looms, WASH.
POST (Sept. 19, 2020), https://www.washingtonpost.com/politics/2020/09/18/reaction-ruth-bader-ginsburg-death/.
5 CRS Report R44778, Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court.
6 See Ronald Ostrow, Chief Justice Warren Submits Resignation, BOS. GLOBE, June 22, 1968, at 1.
7 After the Senate did not act on President Lyndon Johnson’s nominee to replace Chief Justice Warren, the Chief
Justice agreed to remain on the Court until his successor was named. See Carroll Kirkpatrick, Warren Agrees to Finish
Term As Chief Justice: Jurist, Nixon Concur on Continuity
, WASH. POST, Dec. 5, 1968, at A1. On June 23, 1969, Chief
Justice Burger succeeded Chief Justice Warren. See Members of the Supreme Court of the United States, SUPREME
COURT OF THE U.S., http://www.supremecourt.gov/about/members_text.aspx [hereinafter Members of Supreme Court].
8 See Justice Holmes, Near 91, Quits Supreme Bench, N.Y. HERALD TRIB., Jan. 13, 1932, at 1.
9 See Genevieve Forbes Herrick, Benjamin N. Cardozo Is Sworn as U.S. Supreme Court Justice, CHI. DAILY TRIB., Mar.
15, 1935, at 5. Justice Sherman Minton’s retirement in September 1956 resulted in President Dwight D. Eisenhower
appointing Justice William Brennan to the High Court through a recess appointment a few weeks later. See Don
Shannon, Eisenhower Picks Democrat for Supreme Court Vacancy: New Jersey Jurist Gets Minton Post, L.A. TIMES,
Sept. 30, 1956, at 1. The Senate confirmed Justice Brennan via a voice vote the following March. See Willard Edwards,
Two Confirmed for High Court, CHI. DAILY TRIB., Mar. 19, 1957, at B3.
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The Supreme Court’s October 2020 Term is set to begin on October 5,10 with oral arguments
proceeding telephonically due to the ongoing COVID-19 pandemic.11 Thus, it is likely that the
Term will at least begin with only eight Justices. This report provides an overview of the Supreme
Court’s procedural rules and requirements when the Court is staffed with fewer than nine
Justices. Included in this discussion is an overview of the Supreme Court’s quorum requirements,
rehearing procedures, and vote count practices, with a focus on how the Court has traditionally
responded to a change in its composition.
Supreme Court Composition
Article III of the U.S. Constitution provides that the judicial power of the United States shall
reside in “one Supreme Court” and any lower courts Congress chooses to establish.12 Although
the Constitution creates the Supreme Court, it is silent as to the Court’s composition and design.
Congress has generally exercised its constitutional authority to define the Court by statute.13 The
first Congress, for example, enacted the Judiciary Act of 1789, providing that the Supreme Court
consists of “a chief justice and five associate justices.”14 The Court’s size varied during the 19th
century,15 shrinking to five Justices with the passage of the Judiciary Act of 180116 and growing
to as many as 10 Justices after the enactment of the Judiciary Act of 1863.17 In 1869, Congress
reduced the number of Supreme Court Justices to nine,18 where it remains today.19 In contrast to
the federal courts of appeals, which often decide cases with three-judge panels, the Supreme
Court has, perhaps because of the constitutional establishment of “one” court, “always functioned
as a single body, without dividing into panels.”20

10 Amy Howe, Court Releases October Calendar, SCOTUSBLOG (July 13, 2020, 4:22 PM),
https://www.scotusblog.com/2020/07/court-releases-october-calendar-3/. All oral arguments scheduled for October
2020 were originally scheduled for March or April 2020, but were postponed due to the pandemic. Id.
11 Press Release, Supreme Court of the U.S., Press Release Regarding October Oral Argument Session (Sept. 16, 2020),
https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-16-20 (“The Court will hear all oral arguments
scheduled for the October session by telephone conference, following the same format used for the May teleconference
arguments.”).
12 See U.S. CONST. art. III, § 1 (“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.”).
13 See WRIGHT & MILLER, 16B FED. PRAC. & PROC. JURIS. Supreme Court—Introduction § 4001 (3d ed.).
14 See Act of September 24, 1789, ch. 20, § 1, 1 Stat. 73.
15 See John V. Orth, How Many Judges Does it Take to Make a Supreme Court, 19 CONST. COMMENTARY 681, 684–85
(2002).
16 See Act of February 13, 1801, ch. 4, § 3, 2 Stat. 89.
17 See Act of March 8, 1863, ch. 100, § 1, 12 Stat. 794.
18 See Act of July 23, 1869, ch. 22, § 1, 16 Stat. 44.
19 See 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and
eight associate justices . . . .”).
20 See WRIGHT & MILLER, supra note 13, § 4001. Single Justices are empowered to act on incidental matters when
authorized by law. See SUP. CT. R. 22. Often applications addressed to a single Justice are for stays of execution in
death penalty cases or more mundane matters such as extensions of time for filing documents with the Court. See 22-
401 MOORE’S FEDERAL PRACTICE—CIVIL § 401.03; see also Locks v. Commanding Gen., Sixth Army, 89 S. Ct. 31, 32
(1968) (stating that an individual Supreme Court Justice’s authority extends to “granting stays, arranging bail, and
providing for other ancillary relief,” but an individual Justice “has no power to dispose of cases on the merits”).
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The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court

Quorum Requirements
While the Supreme Court consists of nine Justices, it does not require nine Justices to decide a
case. Instead, Congress established that any six Justices “shall constitute a quorum” for the
Court,21 and agreement among the majority of a quorum is generally necessary for the Court to
act.22 If the Court is scheduled to hold a session, but a quorum of Justices is not present, the Court
may announce that it will not meet until there is a quorum.23
Congress has delineated procedures to follow if the Supreme Court cannot hear or decide a case
because of the absence of a quorum.24 These procedures differ depending on a case’s procedural
history. While the majority of cases before the Supreme Court are direct appeals from the lower
appellate courts or are filed pursuant to the Court’s original jurisdiction,25 a small number of
cases, mostly involving redistricting and campaign finance, come to the Court through a direct
appeal after being heard by a three-judge district court.26 If the High Court cannot meet to rule on

21 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight
associate justices, any six of whom shall constitute a quorum.”).
22 See Fed. Trade Comm’n v. Flotill Prods., 389 U.S. 179, 183 (1967) (“The almost universally accepted common-law
rule is [that,] in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of
a collective body is empowered to act for the body.”); see generally EUGENE GRESSMAN, SUPREME COURT PRACTICE 5–
6 (9th ed. 2007); Saul Levmore, More Than Mere Majorities, 2000 UTAH L. REV. 759, 765 (2009) (“[T]here is almost
universal convergence on the requirement of an absolute majority coalition for . . . ‘disposition,’ or the immediate,
enforceable result affecting the litigants.”).
In the 19th century, the Court followed a rule in cases involving constitutional questions under which the Court would
not deliver a judgment unless the decision was that of a “majority of the whole court.” See Briscoe v. Commonwealth’s
Bank of Ky., 33 U.S. (8 Pet.) 118, 122 (1834). The Court seemingly no longer adheres to this rule. See N. Ga. Finishing
v. Di-Chem, Inc., 419 U.S. 601, 616 (1975) (Blackmun, J., dissenting) (arguing that Fuentes v. Shevin, 407 U.S. 67
(1972), “should not have been brought down and decided by a 4-3 vote when there were two vacancies on the Court at
the time of argument”).
23 SUP. CT. R. 4.2 (“Six Members of the Court constitute a quorum. In the absence of a quorum on any day appointed
for holding a session of the Court, the Justices attending—or if no Justice is present, the Clerk or a Deputy Clerk—may
announce that the Court will not meet until there is a quorum.” (citing 28 U.S.C. § 1)).
24 28 U.S.C. § 2109 (“If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and
determined because of the absence of a quorum of qualified justices, the Chief Justice of the United States may order it
remitted to the court of appeals for the circuit including the district in which the case arose . . . . In any other case
brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of
qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined
at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was
brought for review with the same effect as upon affirmance by an equally divided court.”).
25 For example, during the 2019 Term, of the Court’s 66 merit cases that were released with signed opinions, summary
reversals, or summary affirmances by an equally divided court, 54 (82%) were appeals from the U.S. Courts of Appeals
and 12 (18%) were appeals from state courts; none came from three-judge district court decisions or were filed
pursuant to the Court’s original jurisdiction. Final Stat Pack for October Term 2019, at 1, 5, SCOTUSBLOG (July 20,
2020), https://www.scotusblog.com/wp-content/uploads/2020/07/Final-Statpack-7.20.2020.pdf [hereinafter Stat Pack
2019
]. Similarly, during the 2018 Term, of the Court’s 77 merit cases that were released with signed opinions,
summary reversals, or summary affirmances by an equally divided court, 59 (82%) were appeals from the U.S. Courts
of Appeals; 11 (15%) were appeals from state courts; 2 (3%) were appeals from three-judge district court decisions;
and none was filed pursuant to the Court’s original jurisdiction. Final Stat Pack for October Term 2018, at 1, 7,
SCOTUSBLOG (July 30, 2019), https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf
[hereinafter Stat Pack 2018].
26 See, e.g., 28 U.S.C. § 2284(a) (authorizing a district court of three judges when an action is filed “challenging the
constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative
body”); see also 52 U.S.C. §§ 10101, 10304, 10306, 10504, 10701 (authorizing three-judge panels for various voting
rights violations); 42 U.S.C. § 2000a-5(b) (authorizing civil action before a three-judge panel by the Attorney General
on finding a pattern or practice of civil rights violations with regard to public accommodations); id. § 2000e-6
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a case on direct appeal from a district court because of the absence of a quorum, 28 U.S.C.
§ 2109 allows the Chief Justice to remit the case to the court of appeals for the circuit that
encompasses the district in which the case arose.27 Upon remittance to the appellate court, the
court hears the case, sitting en banc or with a panel of three senior circuit judges, and renders a
“final and conclusive” decision.28 In all other cases where a quorum is lacking, Congress has
established that if a majority of the qualified Justices determine “that the case cannot be heard and
determined at the next ensuing term, the court shall enter its order affirming the judgment of the
court from which it was brought for review.”29 Such an order has no precedential value.30
The Court with Fewer Than Nine Justices
A common reason a Justice might be unavailable to participate in a Court proceeding, leading to
the Court hearing cases with fewer than nine Justices presiding, is if the Justice determines a
recusal is necessary because he or she has a personal or financial interest in the case.31 During
more recent terms, another reason for recusal has been when a new Justice refrains from hearing
appeals from the court upon which he or she formerly served, such as when Justice Gorsuch
joined the Supreme Court from the U.S. Court of Appeals for the Tenth Circuit and Justice Brett
Kavanaugh joined from the U.S. Court of Appeals for the D.C. Circuit.32 Similarly, recusals may
occur due to a Justice’s former governmental position, such as Justice Elena Kagan’s former role
as the U.S. Department of Justice’s Solicitor General.33 Still, recusals are somewhat infrequent.34

(authorizing a civil action before a three-judge panel by the Attorney General on finding a pattern or practice of civil
rights violations with regard to discrimination in employment); 26 U.S.C. §§ 9010–9011 (authorizing three-judge
panels for cases respecting certain campaign finance violations); see generally 28 U.S.C. § 1253 (authorizing direct
appeal to the Supreme Court for review of “any civil action, suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges”).
27 28 U.S.C. § 2109.
28 Id.
29 Id.
30 Id.
31 22-401 MOORE’S FEDERAL PRACTICE—CIVIL § 401.03.
32 For example, after he was appointed to the Supreme Court in April 2017, Justice Gorsuch recused himself three
times during the 2017 Term. Final Stat Pack for October Term 2017, at 14, SCOTUSBLOG (June 29, 2018),
https://www.scotusblog.com/wp-content/uploads/2018/06/SB_Stat_Pack_2018.06.29.pdf [hereinafter Stat Pack 2017].
Similarly, after Justice Kavanaugh was appointed to the Court in October 2018, he recused himself eight times during
the 2018 Term. See Stat Pack 2018, supra note 26, at 15.
33 Justice Kagan recused herself from 28 cases during her first term on the Court because of her work in the Solicitor
General’s office. Stephen Wermiel, SCOTUS for Law Students (Sponsored by Bloomberg Law): Justice Kagan’s
Recusals
, SCOTUSBLOG (Oct. 9, 2012, 9:50 PM), https://www.scotusblog.com/2012/10/scotus-for-law-students-
sponsored-by-bloomberg-law-justice-kagans-recusals/ (During Justice Kagan’s first term beginning in October 2010,
“the Court issued full, signed opinions after briefing and oral argument in seventy-five cases. Justice Kagan sat out
twenty-eight of those cases, just over one-third of the total. But two of the cases from which she was recused ended
with the Court deadlocked four to four after briefing and oral argument.”).
34 For example, in 2015, there were four recusals: Alito (two), Kagan (one), Sotomayor (one); in 2016, there were four:
Kagan (two), Roberts (one), Sotomayor (one); in 2017, there were seven: Gorsuch (three), Kagan (three), Kennedy
(one); in 2018, there were eight: all Kavanaugh; in 2019, there were four: Gorsuch (one), Kagan (one), Kavanaugh
(one), Sotomayor (one). Stat Pack for October Term 2015, at 18, SCOTUSBLOG (June 29, 2016),
https://www.scotusblog.com/wp-content/uploads/2016/06/SB_stat_pack_OT15.pdf [hereinafter Stat Pack 2015]; Stat
Pack for October Term 2016
, at 14, SCOTUSBLOG (June 28, 2017), https://www.scotusblog.com/wp-
content/uploads/2017/06/SB_Stat_Pack_2017.06.28.pdf [hereinafter Stat Pack 2016]; Stat Pack 2017, supra note 32, at
14; Stat Pack 2018, supra note 25, at 15; Stat Pack 2019, supra note 25, at 16. See also Ryan Black & Lee Epstein,
Recusals and the “Problem” of an Equally Divided Supreme Court, 7 J. APP. PRAC. & PROCESS 75, 84–94 (2005)
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Prior to Justice Scalia’s death in February 2016—roughly midway through the October 2015
Term—there were only a handful of opinions released by an eight-Justice Court during each of
the prior five Supreme Court terms (an average of four per term); none of those five prior terms
saw an opinion released by only seven or six Justices.35 Because Justice Scalia’s seat remained
vacant for 14 months (from February 2016 to April 2017), however, these statistics shifted
significantly during the October 2015 Term, which saw 61 cases36 decided by an eight-Justice
Court (including four cases37 resulting in 4-4 split votes) and three cases38 decided by a seven-
Justice Court. The October 2016 Term then had 49 cases39 decided by an eight-Justice Court
(although no 4-4 split votes); two by a seven-Justice Court;40 and one by a six-Justice Court.41
And, as noted, with the arrival of new Justices Gorsuch and Kavanaugh, who were recused from a
number of cases, there continued to be eight-Justice cases decided during the 2017 Term (six
cases42 with one resulting in a 4-4 split vote43), the 2018 Term (eight cases44), and the recently
concluded 2019 Term (two cases45).
Legal Consequences of an Equally Divided Court
A Supreme Court consisting of an equally divided number of sitting Justices (i.e., eight or six
Justices) raises the possibility that the Court may be equally divided as to a given case’s outcome.
In the absence of a full Court, when the quorum of Justices is evenly divided (i.e., 4-4 or 3-3), the
Supreme Court generally has taken one of two approaches. First, if the participating Justices are
equally divided on a case’s merits, the Court’s practice has been, at times, not to issue an opinion

(arguing that Justices are reluctant to recuse themselves because of the risk that the remaining eight Justices could split
evenly on a case’s outcome).
35 See Stat Pack Archive, SCOTUSBLOG, https://www.scotusblog.com/reference/stat-pack/ (reporting one eight-Justice
case in 2015; two eight-Justice cases in 2014; five eight-Justice cases in 2013; six eight-Justice cases in 2012; and
seven eight-Justice cases in 2011).
36 See Stat Pack 2015, supra note 34, at 5 (listing “Merit Cases by Vote Split”).
37 See id. at 7. The cases were: Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016); Hawkins
v. Cmty. Bank of Raymore, 136 S. Ct. 1072 (2016); Friedrichs v. Cal. Tchrs. Ass’n, 136 S. Ct. 1083 (2016); and United
States v. Texas, 136 S. Ct. 2271 (2016).
38 See Stat Pack 2015, supra note 34, at 5 (listing “Merit Cases by Vote Split”). The cases were: Puerto Rico v.
Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938 (2016) (5-2); RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016)
(4-3); and Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) (4-3).
39 See Stat Pack 2016, supra note 34, at 5.
40 See id. The cases were: Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734 (2017) (7-0); and Beckles v. United
States, 137 S. Ct. 886 (2017) (7-0).
41 See Stat Pack 2016, supra note 34, at 5. The case was: Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (4-2).
42 See Stat Pack 2017, supra note 32, at 5. The cases were Montana v. Wyoming, 138 S. Ct. 758 (2018), as revised
(Feb. 20, 2018) (8-0); Rubin v. Iran, 138 S. Ct. 816 (2018) (8-0); Dahda v. United States, 138 S. Ct. 1491 (2018) (8-0);
Chavez-Meza v. United States, 138 S. Ct. 1959 (2018) (5-3); Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (5-3); and
Washington v. United States, 138 S. Ct. 1832 (2018) (4-4).
43 See Stat Pack 2017, supra note 32, at 3 n.**. The case was Washington, 138 S. Ct. 1832.
44 See Stat Pack 2018, supra note 25, at 5 (listing “Merits Cases by Vote Split”). The cases were Mount Lemmon Fire
Dist. v. Guido, 139 S. Ct. 22 (2018) (8-0); Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (8-
0); New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) (8-0); Jam v. Int’l Fin. Corp., 139 S. Ct. 759 (2019) (7-1); Azar v.
Allina Health Servs., 139 S. Ct. 1804 (2019) (7-1); Lorenzo v. Sec. & Exch. Comm’n, 139 S. Ct. 1094 (2019) (6-2);
Madison v. Alabama, 139 S. Ct. 718 (2019) (5-3); and Gundy v. United States, 139 S. Ct. 2116, reh’g denied, 140 S.
Ct. 579 (2019) (5-3).
45 See Stat Pack 2019, supra note 25, at 17 (listing “Merits Cases by Vote Split”). The cases were Opati v. Sudan, 140
S. Ct. 1601 (2020) (8-0); and Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082 (2020) (5-3).
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but instead to enter a judgment affirming the lower court’s judgment (i.e., a summary affirmance)
without indicating the Court’s voting alignment.46 In such a case, the lower court’s judgment
stands, but the Supreme Court’s summary affirmance would not be accorded any value as
precedent.47 For the Court, “no affirmative action can be had in a case where the judges are
equally divided in opinion as to the judgment to be rendered or order to be made.”48
Second, in lieu of issuing a summary affirmance of the lower court opinion, the Court could
instead order reargument of the case.49 The Court possesses inherent authority to order
reargument sua sponte (i.e., of its own volition),50 and has exercised this authority after
identifying additional issues for consideration or determining that more time is needed to resolve
a case.51 The Court has also ordered reargument in instances where the Court is equally divided,
and holding the case over for reargument could allow a new Justice to cast the deciding vote to
create a majority opinion.52 For example, the abrupt resignation of Justice Abe Fortas in May
1969 created a Court vacancy that was not filled until Justice Harry Blackmun took the oath of
office on June 9, 1970.53 When several cases that were heard during the 1969 Term resulted in an
equally divided Court, the Court “reschedul[ed] an inordinate number of cases for reargument
during the 1970 term.”54 Similarly, upon Justice Kennedy’s confirmation to the Court, filling a
seat that had been vacant for more than seven months, the Court issued several orders directing
reargument of cases that were previously heard by an eight-Justice Court.55
An interesting scenario occurred in the recent case Carpenter v. Murphy (later renamed Sharp v.
Murphy
), a case for which Justice Gorsuch was recused.56 Murphy was argued during the 2018
Term before eight Justices, but the Term ended without an opinion in the case;57 commentators
surmised that the eight Justices had split 4-4.58 Murphy was then restored to the calendar for

46 See GRESSMAN, supra note 22, at 6.
47 Id.
48 See Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 110 (1868).
49 The term reargument is often used interchangeably with the term rehearing. See Rosemary Krimbel, Rehearing Sua
Sponte in the U.S. Supreme Court: A Procedure for Judicial Policymaking, 65 CHI. KENT. L. REV. 919, 919 n.3 (1989).
However, reargument generally refers to oral argument before the Court, while rehearing also encompasses requests
for written briefs and submissions to questions from the Court. Id.
50 See id. at 930–32.
51 See, e.g., Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (2012) (restoring case for reargument and asking the
parties additional questions).
52 See GRESSMAN, supra note 22, at 816. In cases where the presence of a new Justice makes a majority decision
possible, the traditional practice has been for the incoming Justice not to participate in consideration of whether to
order reargument, but to take part in the consideration and judgment of a case subsequent to such an order. Id. For a
compilation of rearguments and 4-4 affirmances arising from a vacancy on the Supreme Court, see Josh Blackman,
Reargument and 4-4 Affirmances on the Short-Handed Supreme Court, JOSH BLACKMAN’S BLOG (Feb. 23, 2016),
http://joshblackman.com/blog/2016/02/23/rearguments-and-4-4-affirmances-on-the-short-handed-supreme-court-1945-
2006/.
53 See Members of the Supreme Court, supra note 7.
54 See The Supreme Court, 1970 Term: The Statistics, 85 HARV. L. REV. 344, 344 (1971) (noting that 17 cases were
reargued during the 1970 term).
55 See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847 (1988); Ross v. Oklahoma, 487 U.S. 81 (1988); Boyle v. United Techs. Corp., 487 U.S. 500 (1988).
56 Sharp v. Murphy, 140 S. Ct. 2412 (2020).
57 See CRS Legal Sidebar LSB10527, This Land Is Whose Land? The McGirt v. Oklahoma Decision and
Considerations for Congress
, by Mainon A. Schwartz.
58 See id.
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reargument during the 2019 Term.59 However, the Court then granted certiorari in another case
during the 2019 Term that raised a similar question—McGirt v. Oklahoma—in which all nine
Justices could participate.60 Justice Gorsuch not only participated in McGirt, but also authored the
5-4 majority opinion.61 Murphy was then summarily “affirmed for the reasons stated in McGirt.”62
Even short vacancies on the Court have resulted in reargument in closely divided cases. For
example, at least one case that was originally argued before an eight-Justice Court in October
1991 after Justice Thurgood Marshall’s retirement was reargued so that newly appointed Justice
Clarence Thomas could cast the decisive vote.63 And, in 2005, the Court on its own initiative
provided for reargument in three cases that had originally been argued between the death of Chief
Justice William H. Rehnquist and the swearing-in of Justice Samuel Alito.64
It is also not unprecedented for the Court to order reargument following the installment of new
Justices even if there is not an equal division among the sitting Justices. Following the retirements
of Justices Hugo Black and John Marshall Harlan II in 1971, for example, the Court’s remaining
seven Justices heard oral argument in Roe v. Wade and Doe v. Bolton.65 After the confirmations of
Justices Lewis Powell and Rehnquist, Chief Justice Burger led an effort to have the cases
reargued so the two new Justices could participate.66 Justice Blackmun concurred, stating, “I
believe, on an issue so sensitive and so emotional as this one, the country deserves the conclusion
of a nine-man, not a seven-man court.”67 Ultimately, the Court heard reargument in both cases on
October 11, 1972. The reargument resulted in a 7-2 decision in favor of abortion rights,68
although the votes of Justices Powell, who voted with the majority in both cases, and Rehnquist,
who dissented in both cases, did not alter the cases’ outcomes. Evidently then, in cases of special
import or significance, reargument to allow a new Justice to participate in the case is a possibility,
regardless of the probability of a tie vote.
In addition, as evident from the recently concluded October 2019 Term, the Court has authority to
postpone arguments, as it did for all arguments scheduled for March and April 2020 due to the
COVID-19 pandemic.69 And the Court routinely decides cases without oral argument when

59 See id.
60 Id.
61 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
62 Murphy, 140 S. Ct. at 2412.
63 See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). Two additional cases from the 1991 Term that
were argued prior to Justice Thomas joining the Court were scheduled for reargument. See Cipollone v. Liggett Grp.,
505 U.S. 504 (1992); Doggett v. United States, 505 U.S. 647 (1992). However, in both of those cases, Justice Thomas
dissented, indicating that either the cases were not equally divided before reargument or another Justice changed his or
her vote after reargument.
64 See Garcetti v. Ceballos, 547 U.S. 410 (2006); Hudson v. Michigan, 547 U.S. 586 (2006); Kansas v. Marsh, 548 U.S.
163 (2006).
65 See Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973).
66 See John A. Jenkins, THE PARTISAN 140–41 (2012).
67 Id. at 141.
68 See Roe, 410 U.S. 113; Bolton, 410 U.S. 179.
69 Press Release, Supreme Court of the U.S., Press Release Regarding Postponement of April Oral Arguments (Apr. 3,
2020), https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-03-20; Press Release, Supreme Court of the
U.S., Press Release Regarding Postponement of March Oral Arguments (Mar. 16, 2020),
https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_03-16-20. See also Tom Goldstein, What Next for
Oral Arguments?
, SCOTUSBLOG (Mar. 19, 2020, 1:53 PM), https://www.scotusblog.com/2020/03/what-next-for-oral-
arguments/ (stating, in the context of the ongoing COVID-19 pandemic, that the Court can “continue to defer oral
arguments indefinitely—including into the fall”).
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“further briefs and oral arguments would not materially assist in [the] disposition of the case”70
(i.e., when it issues summary reversals).71
Finally, even if the Court chooses to issue a summary affirmance as the result of an equally
divided Court, the petitioner (i.e., the party that initially asked the Court to hear the case) can
request that the Court rehear the matter.72 Supreme Court Rule 44 permits an unsuccessful party
to submit a petition for rehearing within 25 days of the entry of an adverse decision, judgment on
the merits, or denial of certiorari.73 In the context of a summary affirmance resulting from an
equally divided Court, the petitioner, who sought to have the lower court’s ruling reversed, may
seek rehearing of the matter. Despite this option’s availability, as one commentator has noted,
“the Supreme Court seldom grants a rehearing of any kind of order, judgment, or decision” upon
the motion of a losing party.74
The infrequency with which petitions for rehearing are granted is likely due to the fact that the
Court engages in a thorough consideration of each case prior to issuing a decision, making it
unlikely that reargument of a case would change the outcome of even a closely divided Court.75
This principle generally adheres even when there is a change in the Court’s composition, as
rehearing will not be granted “except by a majority of the Court, at the instance of a Justice who
concurred in the judgment or decision.”76 Put another way, only if a Justice who agreed with the
underlying decision now decides rehearing is appropriate, and if a Court majority agrees with that
decision, will rehearing be granted upon request. As a result, the Court generally will grant a
petition for rehearing only in “exceptional situations” when the Court has “substantial doubts as
to the correctness as to what it has decided, or where the unanticipated consequences of the
Court’s decision are clearly explained only in the rehearing petition.”77 As such, while an
unsuccessful petitioner could theoretically petition the Court for a rehearing in anticipation of a
Court with a changed composition, the “more likely” vehicle for rehearing, when the Court is
equally divided among its Justices, is for the Court to order a rehearing sua sponte.
The Term Ahead
The combination of Justice Ginsburg’s death, the November 2020 presidential election, and the
ongoing COVID-19 pandemic and attendant changes in Supreme Court procedures,78 makes it
difficult to anticipate how the October 2020 Term might proceed. However, the Court has
released its argument calendars for October, November, and December 2020, and confirmed that

70 United States v. Indrelunas, 411 U.S. 216, 218 (1973).
71 See Stat Pack 2019, supra note 25, at 2 (noting six summary reversals—cases decided with per curiam opinions
without briefing or argument—during the October 2019 Term).
72 See SUP. CT. R. 44.
73 Id.
74 See GRESSMAN, supra note 22, at 814.
75 Id. at 815 (“Since decisions on the merits generally follow full briefing and oral argument, at which the case is
thoroughly explored, a rehearing attempt by the losing party to present the same arguments anew, even in an improved
fashion, has hardly any chance of success.”).
76 See SUP. CT. R. 44.1.
77 See GRESSMAN, supra note 22, at 817.
78 See Press Release, supra note 11.
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at least the October arguments will proceed by telephone using “the same format used for the
May teleconference arguments,” with the Justices questioning the litigants in order of seniority.79
All of the cases scheduled for argument in October 2020 were originally scheduled for oral
argument in March or April, but were postponed due to the COVID-19 outbreak, including,
among others, Google v. Oracle America,80 a copyright case that may determine whether
copyright protection extends to software interfaces; Rutledge v. Pharmaceutical Care
Management Ass’n
,81 a case involving prescription drug reimbursement rates; and Pereida v.
Barr
,82 an immigration case involving the deportation of a noncitizen convicted of a state crime.
Scheduled for November are some arguably higher-profile cases, including a case involving
Philadelphia’s attempt to require a faith-based foster care agency to comply with the City’s
antidiscrimination policy (Fulton v. City of Philadelphia83) and two consolidated cases
challenging the Affordable Care Act’s constitutionality in light of Congress’s elimination of the
tax penalty associated with the individual mandate (California v. Texas and Texas v. California84).
Finally, the December argument calendar includes two cases of particular interest to Congress.
Department of Justice v. House Committee on the Judiciary85 involves access to grand jury
materials from Special Counsel Robert Mueller’s investigation, and whether an impeachment trial
is a “judicial proceeding” for purposes of an exception to the general rule of grand jury secrecy.
And the consolidated argument in Collins v. Mnuchin86 involves whether the Federal Housing
Finance Agency’s (FHFA’s) leadership structure is constitutional, and whether Fannie Mae and
Freddie Mac shareholders can challenge an agreement between the FHFA and the Treasury.

79 Press Release, Supreme Court of the U.S., Press Release Regarding May Teleconference Arguments Order of
Business (Apr. 28, 2020), https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-28-20 (“The Court will
hear oral arguments by telephone conference . . . in a limited number of previously postponed cases. . . . Following the
usual practice, the Court generally will not question lead counsel for petitioners and respondents during the first two
minutes of argument. . . . At the end of this time, the Chief Justice will have the opportunity to ask questions. When his
initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of
seniority.”).
80 Google LLC v. Oracle Am., Inc., cert. granted, 140 S. Ct. 520 (2019) (No. 18-956, 2020 Term). Google is scheduled
for argument on October 7, 2020. Argument Calendar for the Session Beginning October 5, 2020, SUPREME COURT OF
THE U.S. (July 13, 2020), https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCal
October2020.html.
81 Rutledge v. Pharm. Care Mgmt. Ass’n, cert. granted, 140 S. Ct. 812 (2020) (No. 18-540, 2020 Term). Rutledge is
scheduled for argument on October 6, 2020. Argument Calendar for the Session Beginning October 5, 2020, supra note
80.
82 Pereida v. Barr, cert. granted, 140 S. Ct. 680 (2019) (No. 19-438, 2020 Term). Pereida is scheduled for argument on
October 14, 2020. Argument Calendar for the Session Beginning October 5, 2020, supra note 80.
83 Fulton v. Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123, 2020 Term). Fulton is scheduled for argument on
November 4, 2020. Argument Calendar for the Session Beginning November 2, 2020, SUPREME COURT OF THE U.S.
(Aug. 19, 2020), https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalNovember2020.html.
84 California v. Texas, cert. granted, 140 S. Ct. 1262 (2020) (No. 19-840, 2020 Term); Texas v. California, cert.
granted
, 140 S. Ct. 1262 (2020) (No. 19-1019, 2020 Term). The consolidated argument is scheduled for argument on
November 10, 2020. Argument Calendar for the Session Beginning November 2, 2020, supra note 83.
85 Dep’t of Justice v. House Comm. on the Judiciary, cert. granted, No. 19-1328, 2020 WL 3578680 (U.S. July 2,
2020). House Committee on the Judiciary is scheduled for argument on December 2, 2020. Argument Calendar for the
Session Beginning November 30, 2020
, SUPREME COURT OF THE U.S. (Sept. 16, 2020), https://www.supremecourt.gov/
oral_arguments/calendars/MonthlyArgumentCalDecember2020.html.
86 Collins v. Mnuchin, cert. granted, No. 19-422, 2020 WL 3865248 (U.S. July 9, 2020); Mnuchin v. Collins, cert.
granted
, No. 19-563, 2020 WL 3865249 (U.S. July 9, 2020). The consolidated argument is scheduled for argument on
December 9, 2020. Argument Calendar for the Session Beginning November 30, 2020, supra note 85.
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The Death of Justice Ruth Bader Ginsburg: Procedural Issues on an Eight-Justice Court

Conclusion
While the Supreme Court is scheduled to hear a number of cases during the upcoming term,
Justice Ginsburg’s passing means that, for at least part of the term, the Supreme Court will have
eight Justices presiding. The details of how the term will proceed, however, remain unclear. To
the extent that the Court proceeds with eight Justices, with the possibility of cases resulting in a
split vote, the relevant statutes, rules, and practices give the Court significant authority and
discretion to determine whether (1) to issue an order summarily affirming a lower court’s ruling;
or (2) to allow a case to be reargued so that a new Justice can eventually participate in the ruling
and settle the split on the High Court.

Author Information

Caitlain Devereaux Lewis

Section Research Manager

Presidential Policy Directive 41: United States Cyber Incident Coordination—What Is the Role of the Department of Defense?

 

Presidential Policy Directive 41: United States Cyber Incident Coordination—What Is the Role of the Department of Defense?

On July 26, 2016, President Obama signed Presidential Policy Directive 41, United States Cyber Incident Coordination, "setting forth principles governing the Federal Government's response to any cyber incident, whether involving government or private sector entities." Issued following high-profile attacks such as the Office of Personnel Management (OPM) breach in 2015 and the recent breach of the Democratic National Committee's (DNC's) email system, the directive addresses a number of cyber-related issues, including defining various types of cyber incidents as well as departmental roles and responsibilities in responding to such events. The directive defines a cyber incident as an event occurring on or conducted through a computer network that actually or imminently jeopardizes the integrity, confidentiality, or availability of computers, information or communications systems or networks, physical or virtual infrastructure controlled by computers or information systems, or information resident thereon. A significant cyber incident is one that is likely to result in demonstrable harm to the national security interests, foreign relations, or economy of the United States or to the public confidence, civil liberties, or public health and safety of the American people. Five operating principles are articulated in the response plan:

  • shared responsibility among individuals, government, and the private sector in protecting networks from attack,
  • risk-based response,
  • respecting affected entities,
  • unity of effort, and
  • enabling rapid restoration and recovery.
  • The directive also proscribes a five-level cyber incident severity schema for assessing the severity of cyberattacks, similar to the Department of Homeland Security's color-coded national terrorism advisory system. 

This directive offers details supporting previously enunciated goals contained in the Comprehensive National Cybersecurity Initiative (CNCI), which sought "an organized and unified response to future cyber incidents." The CNCI was published in January 2008, with the objective of "establish(ing) a multi-pronged approach the federal government is to take in identifying current and emerging cyber threats, shoring up current and future telecommunications and cyber vulnerabilities, and responding to or proactively addressing entities that wish to steal or manipulate protected data on secure federal systems." Agencies often designate information as classified or law enforcement sensitive, due to the complex and often uncertain nature of a cyber incident, which often entails collecting data about the attackers, their motivations, and the applicable U.S. response.

Some security observers suggest that this directive may assist in clarifying prior concerns regarding a lack of transparency by victims or prospective targeted entities regarding the activities various agencies have undertaken in response to a cyber incident. Others suggest that persistent questions remain regarding "the adequacy of existing legal authorities—statutory or constitutional—for responding to cyber threats and the appropriate roles for the executive and legislative branches in addressing cybersecurity."

The directive lists three federal agencies as leads for various levels of coordination. The Department of Justice (DOJ), acting through the FBI and the National Cyber Investigative Joint Task Force, is named the lead federal agency for threat response coordination, particularly where the incident in question may involve one or more nation states as the perpetrator. The Department of Homeland Security (DHS), through the National Cybersecurity and Communications Integration Center, is the lead for asset response activities, helping other agencies and companies recover from attacks on their networks. The Office of the Director of National Intelligence is the lead for intelligence support and related activities. According to the directive, DHS and DOJ must establish a concept of operations for the rapid response Cyber Unified Coordination Group as the primary method for coordinating between and among federal agencies in response to a significant cyber incident.

Critics contend that the question of who is in charge in the event of an attack is not sufficiently answered by the new directive, and that missing from the coordination plan is a clear focal point within the government for the private sector to call upon in the event of a major incident. Others question whether the entities named by the directive correlate to the nature of the threat. For example, some posit that as a diplomatic institution, the State Department is more appropriate than the Department of Justice for working with nation-state actors.

In addition, mention of the Department of Defense (DOD) is noticeably absent from the document. A specific area of ongoing congressional interest is the role of the DOD in planning for and responding to a cyber incident. The U.S. Cyber Command and National Security Agency are DOD assets that are well-positioned to respond to a cyber event of national significance. Not only is DOD charged with defending the nation from threats, the 2015 Department of Defense Cyber Strategy affirms that the department must work with its interagency partners, the private sector, and allied and partner nations to deter and, if necessary, defeat a cyberattack of significant consequence on the U.S. homeland and U.S. interests. By invoking the military, the presidential policy directive could have deterrence value by alerting foreign nations to what consequences may arise should a cyber incident be linked to their territory. Previous statements from government officials declared that the United States will treat a significant cyberattack in the same manner as an attack on the land, sea, air or in space. For example, the Administration's May 2011 International Strategy for Cyberspace pledged that the United States "will respond to hostile acts in cyberspace as we would to any other threat" and that "we reserve the right to use all necessary means." If the PDD were to suggest that a significant cyberattack on U.S. networks (meaning one that has national security implications) may trigger a military response, this could serve as a similar declaratory policy. Such an assertion could raise the stakes for countries that engage in malicious cyber activity. In contrast, placing the DOJ as the lead seems to be in keeping with the Administration's view that cyber incidents should be viewed as a criminal matter, leading to indictments of foreign nationals as individuals.

The Real Cost of Wind and Solar

 

The Real Cost of Wind and Solar

The main problem with either wind or solar is that they generate electricity erratically, depending on the wind or sunshine. In contrast, a fossil-fuel plant can generate electricity predictably upon request. Blackouts are very expensive for society, so grid operators and designers go to a lot of trouble to make sure that blackouts are rare. The electrical grid should have spare capacity sufficient to meet the largest demand peaks even when some plants are out of commission.  Plants in spinning reserve status stand by ready to take over if a plant trips (breaks down). Injecting erratic electricity into the grid means that other plants have to seesaw output to balance the ups and downs of wind or solar.

Adding wind or solar to a grid does not mean that existing fossil fuel plants can be retired. Often, neither wind nor solar is working and at those times a full complement of fossil fuel plants, or sometimes nuclear or hydro plants, must be available. Both wind and solar have pronounced seasonality. During low output times, as for summer wind, the fossil-fuel plants are carrying more of the load. Of course, solar stops working as the sun sets.

Wind behaves erratically hour to hour. Even though the Texas 18,000-megawatt system has thousands of turbines spread over a wide area, the net output is erratic changing by thousands of megawatts in a single hour. These shifts must be balanced by fossil-fuel plants slewing their output up and down to compensate and keep load matched to generation.

Even very sunny southwest cities have 50 or more cloudy days per year, stopping or reducing solar generation. Wind turbines are very sensitive to wind speed. A 10% change in wind speed will change power output by 30%, amplifying the erratic nature of wind.

The big picture is that when wind or solar is added to a grid it is supplemental power. No coal or gas plants are eliminated. Those plants have to stay in place to handle periods when wind and solar are not producing electricity. This does not stop claims that wind or solar is replacing fossil fuel, but it is fuel that is replaced, not fossil-fuel plants. When wind or solar is producing, the fossil fuel plants are throttled back and they use less fuel. If, for example, a coal plant was closed when wind was added to the grid, the safety margin would be compromised.

Viewed from the effect on the economy, adding wind or solar electricity provides the benefit of reduced fuel consumption in backup fossil fuel plants. This saving in fuel amounts to about $15 per megawatt hour, the cost of natural gas to generate a megawatt hour of electricity.  The cost of coal is similar. The backup fossil-fuel plant still has to have its full staff and may have more costly maintenance due to the up-down style of operation forced by the introduction of erratic energy. If the renewable energy costs more than $15 per megawatt hour, then it is not competitive. Wind or solar power actually costs around $80 per megawatt hour.

How can I claim that wind or solar cost $80 when power purchase agreements at $25 per megawatt hour are often touted in the press? Even at $25 the wind or solar is far from competitive. The gap between $80 and $25 is accounted for by subsidies. The $10 difference between $25 and $15 is also a subsidy because the purchaser is paying $25 for the electricity that could be generated in a backup fossil fuel plant, that already exists and that must exist, for $15. What are the subsidies that lower the $80 cost to the publicized $25?

The biggest and most important subsidy is not an explicit subsidy but a mandate. Thirty states have renewable portfolio standards. These are laws that require the utilities to supply a certain percentage of renewable power. For example, California has a law that 60% of its power must be renewable by 2030. The consequence of the mandate is that the utility has to grant whatever terms are required to convince investors to build the renewable power plants. In practice this results in the utility promising to purchase all the power generated for 25 years at a fixed rate. The contract is signed before a shovel of dirt is moved. Forcing utilities to buy renewable power puts the suppliers of renewable power in an advantageous position. The subsidy that reduces the cost from $80 to $25 are federal explicit subsidies, better financing, and lower required rate of return that results from having a 25-year contract in hand from a credit worthy utility. There is a federal tax credit that pays up to 30% of the plants cost. Additionally, there is a tax subsidy called tax equity financing that allows a highly taxed partner to the investor to divert money from the federal treasury to the project. This subsidy depends on special depreciation rules enacted by congress to subsidize renewable energy.

Wind or solar does not use fuel. The cost of the electricity is mostly determined by the capital cost amortized over the life of the plant. That in turn depends on the interest rate or discount factor. That factor is dramatically better due to the 25-year contract. If you take away the subsidies, renewable electricity, wind or solar, will cost about $80 per megawatt hour. Such comparisons are still dubious because there are no unsubsidized, utility-scale wind or solar plants. No utility would buy $80 renewable electricity to replace $15 fossil fuel electricity. A stand-alone, enterprise wind or solar plant would be a huge economic failure because there would be no market for overpriced electricity. The entire renewable electricity industry is actually a government boondoggle. Neither, is renewable electricity an economic method for reducing CO2 emissions as has been made clear by the most important proselytizers for global warming such as Climate Scientists for Nuclear.

Biden's Authoritarian America

Biden's Authoritarian America

The principle of limited government is at the heart of the American system.  The Founders believed that tyranny grows in proportion to power, threatening individual liberty.  History is littered with innumerable examples of "absolute Despotism," to use the words of the Declaration of Independence, in which government exercised its power against the people rather than for the people.

The pivot of limited government is restraint.  Under the Constitution, government is confined to those powers that protect life, liberty, and property.  James Madison warned, "It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it" (Federalist 48).

Despite accusations of fascism from the left, President Trump has attempted to scale back the power of government by eliminating or curtailing many federal regulations and by reducing the size of the federal government and the federal work force.  He has made mistakes, to be sure, but in terms of actual policy, his critics are hard pressed to cite substantive examples that amount to a pattern of "tyranny" and "fascism."  Instead, much of the criticism surrounds his sometimes reckless language and his verbal attacks on the press.  (Ironically, it was Barack Obama who abused government power by investigating, spying on, and harassing journalists.)

Under a Biden administration, we will see a colossal escalation in the scope and power of government, projected by authoritarian policies, many of which were put in place under President Obama.  The apparently affable Biden is a Progressive who believes that the primary purpose of government is to engineer social and economic structures in order to create a "just society."  Progressives have no limiting principles to restrain government growth because they are convinced that government is a benign agent of the people — a supremely naïve belief according to the American Founders.

The prospect of an authoritarian government under Biden is not a nebulous accusation, but a concrete extrapolation based on his record and his current positions and policies.  The examples that follow are drawn from my eBook, The War on America's Founding Principles: How Progressives Are Dismantling America One Plank at a Time.  The book can be downloaded for free.

Attacks on Religious Freedom

Biden has promised to sign the Equality Act into law if it is passed by the Senate.  This legislation limits religious freedoms by elevating LGBT rights, which, for Progressives, take precedence over other rights.  The Equality Act amends the 1964 Civil Rights Act to "prohibit discrimination on the basis of the sex, sexual orientation, gender identity."  Section 1107 specifically denies exemptions for religious freedom granted under the Religious Freedom Restoration Act of 1993.

The Equality Act would force churches to open their sex-specific facilities, such as bathrooms, to members of the opposite sex.  It would threaten creative professionals, like Christian bakers, wedding photographers, and florists, who would be forced, against their deeply held religious beliefs, to use their artistic skills in support of same-sex couples attempting to marry.  In short, the Equality Act would force religious individuals and organizations to speak messages and act in ways that violate their beliefs, under the threat of punishment.

Biden will restore the Affordable Care Act ("Obamacare"), forcing religious ministries and schools, along with businesses operated by religiously devout owners, to cover the insurance cost of birth control drugs that can cause abortions.  After a successful nine-year battle in the court system against the Obama administration, the Little Sisters of the Poor, a Catholic order of nuns, would find themselves in litigation again to protect their religious freedom.  Ironically, Biden claims to be a devout Catholic.

Forced Taxpayer Funding of Abortion

Biden will require taxpayers to fund abortions, with no exception for conscience.  Those who morally object to abortion as murder will be forced to subsidize it.  Most Americans have opposed government funding of abortion, including Biden himself.  Until recently, he supported the 1976 Hyde Amendment, which prohibits the use of federal funds to pay for abortions (with a few exceptions).  This longstanding agreement was, in effect, a truce between the two opposing, and often hostile, sides of the abortion debate.  But Biden, under the influence of the radical left, has become far less tolerant and will settle for no middle ground when it comes to "social justice."

Shadow Justice System

Biden will restore Obama's guidance for college tribunals on sexual misconduct.  In 2011, the U.S. Department of Education's Office for Civil Rights established new mandates under the Obama administration requiring colleges and universities that receive federal funding to dramatically reduce the due process rights of students accused of sexual misconduct.  These included:

  • a recklessly broad definition of sexual harassment
  • a low threshold of evidence for determining guilt
  • denial of the right of the accused to face his accuser
  • denial of the right of the accused to cross-examine witnesses
  • denial of the right to see all the evidence collected in the case
  • denial of the right to objective and impartial investigations
  • denial of the right of presumed innocence until proven guilty

These unjust regulations were rectified under the Trump administration to the accolades of civil rights organizations like FIRE.  But Biden intends to reinstitute Obama's sham system, which has more in common with the show trials of authoritarian regimes than with American justice.  These shadowy tribunals give us a window into the Progressive view of justice and how it would be applied in a Progressive legal system.

Discrimination against Women

Biden will reinstate Obama's heavy-handed transgender "bathroom directive."  The federal government will order women and girls in public schools to permit males to use their bathrooms, locker rooms, and showers.  This violates their inalienable right to fundamental bodily privacy and poses a safety risk.  Girls' and women's sports teams will be required to admit males who pretend to be female, even though they represent an unfair and insuperable advantage over females.

Federal Control of Private Property

The barometer of encroaching authoritarianism is the consolidation of power.  Whereas the Founders sought to divide sovereignty between state and federal governments (federalism), Progressives like Biden aspire to create a top-down system of control in order to implement their economic and social vision, effectively quashing the power of the states.  For example, Biden said he would shut down the country if necessary in order to stop the spread of the coronavirus, even though the direct oversight of public health is not a power delegated to the president or the federal government.  Only the states have the power, under the 10th Amendment, to determine what is in the best interest of public health and the police power to enforce it when necessary.

Biden's attempt to consolidate power by running over the states is evident in his environmental policies, which give the federal government nearly plenary control over private property.  Though each state has one or more agencies to monitor and regulate the quality of the environment, the EPA has assumed expansive powers to override state regulations on land, air, water, wildlife, and other natural resources.  Under the Obama administration, this power was expanded further by giving the agency sweeping and unprecedented authority over streams and wetlands, even on private property.  President Trump rolled back this usurpation of power, handing control back to the states.  Biden, however, intends to reinstate Obama's authoritarian regulations.  He will also establish an "Environmental and Climate Justice Division" in order to further consolidate federal power by using, in his words, an "all-of-government approach."

Federal Control of Local Zoning Laws

Finally, under Joe Biden, the federal government will extend its tentacles to local neighborhoods by regulating zoning.  His administration will end single-family zoning in many suburbs and create "little downtowns" in these communities by building high-density, low-income housing.  This will effectively destroy the suburbs by merging them with large cities.  In keeping with the authoritarian nature of this program, suburbs that refuse to comply will be cut off from millions of dollars in HUD grants, and possibly from critically needed federal transportation grants used to build and repair state highways.

Though Joe Biden presents himself as a moderate, his authoritarian policies betray a more radical, Progressive philosophy that is gradually undermining and replacing America's social, political, and economic fabric.  Biden's administration will have no limiting principle to restrain the growth of government power.  By further consolidating control, he will hasten the erosion of numerous constitutional rights, inching us closer to tyranny.  As James Madison warned, "[t]here are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations."

 

Tuesday, September 29, 2020

Democrats Are Lying About Amy Coney Barrett’s Abortion Record

 

Democrats Are Lying About Amy Coney Barrett’s Abortion Record

The attacks on Barrett fail to identify the 'abortion restrictions' at issue and purposely so, to create the impression she is an extremist.
Margot Cleveland
By

Even before President Trump officially named Amy Coney Barrett as his nominee to the Supreme Court, the left began assailing the Seventh Circuit Court of Appeals judge and Notre Dame Law School professor. The vilest attacks involved the mother-of-seven’s two adopted children.

Those attempting to scuttle Barrett’s confirmation by questioning the circumstances of those adoptions will soon be silenced, however, by more savvy leftists who recognize the risk of backlash is too great. Instead, the more mainstream Democrats will present their objections to Barrett’s appointment as tethered to her judicial rulings, especially in the area of abortion.

Here, the left also just can’t seem to stick to the facts: Rather than level with Americans that they fear the conservative Barrett will vote to overturn Roe v. Wade and thereby return abortion policy to the states, opponents of the Seventh Circuit judge are lying about her judicial record.

Twitter pundits and personalities began peddling these falsehoods on Friday, claiming Barrett “has ruled twice in favor of upholding restrictions to abortion access.”

Within minutes of President Donald Trump’s Rose Garden introduction of Barrett on Saturday, an email blitz from the National Abortion Federation, the self-anointed “professional association of abortion providers,” proclaimed Barret a threat to “our basic rights and freedoms, including abortion access.”

The press release by the association’s president and CEO, “The Very Reverend Katherine Ragsdale,” then pushed hard on this theme, claiming Barrett has “vot[ed] twice in her three short years as a federal appellate judge, in favor of abortion restrictions, both times in dissent.” This claim is blatantly false.

Coney Barrett has never voted “in favor of abortion restrictions.” As we shall soon see, had Barrett voted to uphold the abortion restrictions at issue, there would be strong public support for the decisions. Even the phraseology is wrong: A judge doesn’t vote “in favor of abortion restriction.” State and federal legislators do. What a judge does (or should do) is assess the constitutionality of the statute.

Even then, Barrett has never sat on a case challenging the constitutionality of an abortion restriction. Rather, what she has done is vote for “en banc” review of two panel decisions rendered by other judges on the Seventh Circuit.

What Were the Cases?

In one case, Box v. Planned Parenthood of Indiana and Kentucky, a three-judge panel of the Seventh Circuit declared two provisions of the Indiana code regulating abortions unconstitutional and then upheld a lower court’s injunction barring enforcement of the provisions. One provision at issue in the case banned abortions procured solely on the basis of the unborn baby’s sex, race, ethnicity, or disabilities, while the other portion of the challenged law required aborted remains to be disposed of by burial or cremation.

While Barrett dissented from the denial of rehearing en banc, voting for the full court to rehear a case is not a vote on the underlying merits. As for her vote being in the “dissent,” that merely meant a majority of the judges decided not to rehear the case.

Given that the Supreme Court later reversed the Seventh Circuit’s panel decision and upheld the fetal disposal portion of the law, however, Barrett’s view that the full court should reconsider the issue seems solid. (The Supreme Court declined to review the merits of Indiana’s ban on sex, race, ethnicity, or disability-based abortions, as no other court of appeals had yet to address that question, and the high court typically waits for a split in the circuits to consider a question.)

The second case, also captioned Planned Parenthood of Indiana and Kentucky v. Box, (Box being Kristina Box, the commissioner of the Indiana State Department of Health), likewise involved a challenge to an Indiana law regulating abortions. The law at issue in this second case required parental notification of a minor’s intent to undergo an abortion, absent a judicial decision that it was in the child’s “best interest” for her parents not to be notified.

Again, a panel of the Seventh Circuit declared the law unconstitutional and entered an injunction barring its enforcement. Judge Michael Kanne dissented from the panel decision, and a vote to go en banc was called but failed, leaving the panel decision intact.

Kanne dissented from the denial to rehear the case en banc, and Barrett, along with three other colleagues, joined that dissent. The dissent, however, addressed solely the decision to rehear the case and not the merits of the abortion legislation. In fact, the dissent made clear the issue of concern was not the abortion regulation, but procedure and federalism.

“This case implicates an important and recurring issue of federalism,” Kanne wrote. “Under what circumstances, and with what evidence, may a state be prevented from enforcing its laws before it goes into effect? … Given the existing unsettled status of pre-enforcement challenges in the abortion context,” the longtime federal judge wrote, “I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”

While the full Seventh Circuit did not rehear the case, the Supreme Court later vacated the panel decision, sending it back for the judges to decide the issue anew following the high court’s guidance in June Medical Services, LLC v. Russo concerning the undue burden analysis.

Amy Coney Barrett Is No Extremist

Not only is the abortion lobby’s claim that Barrett voted to strike down abortion restrictions in two cases false, but the Supreme Court’s subsequent rulings also vindicate her view that the issues warranted further consideration by the full court.

Another equally important pushback is needed: The attacks on Barrett fail to identify the “abortion restrictions” at issue and purposely so, to create the impression she is an extremist. Laws requiring parental notification and banning sex-based abortions receive widespread support, however. Mandating the cremation or burial of fetal remains does not strike moderate Americans as unreasonable, especially after the discovery of thousands of aborted fetal remains hoarded by the now-deceased abortionist George Klopfer.

Of course, the bottom line for abortion apologists is that there should be no restrictions on abortion — even those supported by a majority of Americans. Given that reality, stay tuned for the next false charge likely in the pipeline: that with Barrett on the Supreme Court, Roe v. Wade will be reversed and abortion will be illegal.

Unfortunately, no matter how many times that canard is challenged, the message just doesn’t seem to get through: Overturning Roe v. Wade will not make abortion illegal. Maybe, what we need is a new messenger — say, a law professor.