Justices appear divided in first case of new term

By Mark Sherman and Jessica Gresko
Associated Press

WASHINGTON (AP) — With Brett Kavanaugh’s nomination in limbo, a shorthanded Supreme Court appeared evenly split this week over a potential habitat for an endangered frog in the first arguments of the new term.

The arguments and the appearance of the eight justices on the bench — an empty place on the far right where a ninth would sit — underscored the unusual environment in which the high court began its new term.

Republicans had hoped to have Kavanaugh confirmed in time for Monday’s session, an addition that would cement conservative control of the court.

But the vote on Kavanaugh’s nomination has been delayed while the FBI investigates allegations against him of sexual misconduct.

The case argued Monday morning concerns a dispute over Louisiana timberland that was designated as critical habitat under the Endangered Species Act for the dusky gopher frog, even though the frog is found only in Mississippi.

The conservative justices appeared sympathetic to the Weyerhaeuser Co. timber company that sued over the designation. The liberals seemed inclined to back the government.

And even though the absence of a justice can prod the court to compromise, pointed disagreements between the two sides of the court emerged in the course of the hourlong arguments.

Justice Elena Kagan said the company seemed to be arguing that the Endangered Species Act “would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species.”

But a few minutes later, Justice Samuel Alito jabbed at Kagan.

“Now this case is going to be spun, we’ve already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not. That’s not the choice at all,” Alito said, adding that the only issue is whether private landowners or the government is going to pay to preserve land that could support an endangered species.

The justices could hold onto the case and order a new round of arguments once the bench is full, or resolve the case narrowly.

When the court met just after 10 o’clock, it was the first time in more than 30 years without Justice Anthony Kennedy, who retired over the summer.

Chief Justice John Roberts proclaimed the end of the last term and the start of the new one, then briefly congratulated Justice Ruth Bader Ginsburg on her 25 years on the court.

“We all look forward to sharing many more years with you in our common calling,” Roberts told the 85-year-old Ginsburg, who now sits immediately to Roberts’ left in the court’s seniority-based seating plan.

Justice Clarence Thomas, the longest-serving member of the current court, was to Roberts’ right. Ginni Thomas, the justice’s wife, watched the morning arguments from seats reserved for justices’ guests.

It was mostly business as usual. The justices turned down roughly 1,400 appeals that had been awaiting decision over the summer. Lawyers were sworn in as members of the Supreme Court bar.

The justices have some recent experience operating at less than full strength. Nearly 14 months elapsed between Justice Antonin Scalia’s death in 2016 and Justice Neil Gorsuch’s confirmation last year.

Senate Republicans refused to act on President Barack Obama’s Supreme Court nomination of Judge Merrick Garland.