WASHINGTON – A bank fraud conviction sent Southern California resident Lawrence Eugene Shaw to federal prison and his lawyer to a Supreme Court that remains depleted by politics.
Shaw’s challenge Tuesday to his 2012 conviction will start the high court’s new term. It could be a term that ultimately stars a new justice and confirms the impact of the late Justice Antonin Scalia’s absence.
It’s a term during which justices will scrutinize North Carolina’s redrawn congressional districts, Texas’ death penalty practices and Miami’s fair housing actions.
And it’s a term that could bring some rare good fortune for Shaw, now living in a Long Beach-area halfway house as he completes his sentence.
“Lawrence Shaw has spent a lifetime chasing expectations — his father’s, his ‘Tiger Mom’ stepmother’s, his own — and feeling like a failure at every turn,” his attorney wrote in a 2013 sentencing memo.
The hourlong oral argument Tuesday will deal with a technical question that only lawyers, inmates and potential defendants care much about: whether a conviction under the federal bank-fraud statute requires an intention to cheat a bank as well as deceive it.
Underscoring the case’s limited audience, just one outside organization, the National Association of Criminal Defense Lawyers, filed a brief giving its view of the case. By contrast, a big challenge last term to union fees charged by the California Teachers Association drew nearly 50 such friend-of-the-court briefs.
But Shaw’s low-key case also suits a court that’s still shorthanded seven months after Scalia’s death. With only eight justices, who tied 4-4 in the union fee case, the court’s 2016 term is starting out slow.
No blockbuster cases
“You can see the impact of the eight-person court,” said Steven R. Shapiro, legal director for the American Civil Liberties Union. “There aren’t any high-profile, blockbuster cases on the docket.”
This probably isn’t a coincidence. With the court now evenly divided between Democratic appointees and Republican appointees, justices may be wary about deadlocking on the hottest conflicts. A 4-4 tie, like the court reached four times last year following Scalia’s death, lets a lower appellate decision stand but provides no precedent.
“The chief [justice] might be trying to identify cases that could be 4-4, and waiting until they have the ninth justice,” said Martin S. Lederman, an associate professor at the Georgetown University Law Center, adding that “justices are showing obvious caution.”
As of Friday, the court had agreed to hear some 40 cases. Justices will add more, with an average of about 75 being heard in a typical term. The last oral arguments are in April, and the final decisions are in by the end of June.
By then, one way or another, the vacancy left by Scalia’s Feb. 13 death is likely to have been filled. Insisting the next president must choose, Senate Republicans have refused to hold a confirmation hearing for appellate Judge Merrick Garland, whom President Obama nominated March 16.
If Republicans hold firm, the nomination for the seat that Scalia held for nearly 30 years will be made by either Hillary Clinton or Donald Trump. Clinton could stick with the 63-year-old Garland or choose another, while Trump has identified 21 potential nominees.
Reprise of familiar fights
Some familiar fights already fill the court’s docket.
North Carolina’s periodic legislative redistricting, for instance, has repeatedly been challenged at the Supreme Court. The latest case contests the packing of blacks into two congressional districts.
Although the eight-member court accepted the case in June, an argument date has not yet been set. Redistricting challenges summon the kinds of explicit political consequences for which a tie vote can be particularly troublesome.
One of this term’s Texas death penalty challenges was brought on behalf of a death row inmate from Houston who, according to the state’s brief, “executed his former girlfriend in the street outside her home while her children watched, and laughed about what he had done.”
In other cases, like an effort by Bank of America and Wells Fargo to stop Miami’s Fair Housing Act lawsuit alleging discriminatory lending practices, the court will confine itself to a question of “standing” to sue rather than of the lawsuit’s underlying merits.
“This is a very much holding-pattern year,” said David Cole, a professor at Georgetown University Law Center.