AUDIE CORNISH, HOST:
The U.S. Supreme Court got down to work today. The eight justices heard the first arguments of their new term. NPR legal affairs correspondent Nina Totenberg was at the court, and she joins us now. And Nina, how did the eight justices appear to you?
NINA TOTENBERG, BYLINE: Perky, lively, asking lots of questions in the two cases they heard this morning. Justice Ginsburg even had on a new and festive multicolored collar over her robe given to her this summer, I understand, by the New Mexico Bar Association.
CORNISH: Now, we should note there's only eight of them, not nine. And it's been that way for quite some time.
TOTENBERG: Eight months, ever since the death of Justice Antonin Scalia last February and the declaration by Senate Republican leader Mitch McConnell that the seat would stay empty until the next president makes his or her pick.
CORNISH: And initially you've had several justices say that this is not a big deal. But that was then. I mean have things changed? Is it becoming a problem?
TOTENBERG: Well, the cracks are beginning to show. I think the legal folks - and I mean lawyers as well as justices - really didn't believe that the Republicans in the Senate would stick with McConnell's position. It really is unprecedented. But he's kept his troops in line, and the only remaining question is whether - if Hillary Clinton were to win, whether he'd allow a vote on the pending nomination of Merrick Garland in the lame-duck session.
If he doesn't - and so far that's his position - then it's unlikely that a new justice would be sworn in before the spring after confirmation hearings and a vote. So in order to avoid tie votes on the bigger, more controversial issues, the court looks like it's trying to stay away from them when it can.
And as for some of the more controversial questions that it agreed to hear before Scalia died, it's putting off arguments in those cases in the hope I guess that the court will get a ninth justice later this term. And what's left can be a bit of a yawn. So today, for instance, there was a double-jeopardy case and a bank fraud case argued.
CORNISH: But are there any big cases on the agenda?
TOTENBERG: Big, I don't know - interesting, yes. Tomorrow, for instance, there's a case involving a man sentenced to die after a psychologist testified he was more likely to be dangerous because he's black. But even that is a pretty small-bore case because it won't affect lots of other cases - won't resolve a question that's bedeviled and divided the lower courts.
Of course there are bigger, more controversial cases. There's a big church-state question. And they'll have to get argued even if the court can't decide them.
CORNISH: Can't decide - what do you mean by that?
TOTENBERG: Well, they've put off hearing questions in which they may be evenly divided because if there's a tie vote, then the question remains unresolved. The lower court decision stays in place but sets no national precedent. And several of the justices have said publicly that this is a problem the longer it lasts because the major legal questions remain unresolved.
CORNISH: So looking ahead, what potentially do you see coming to the court?
TOTENBERG: Well, the strict voter ID laws that were passed by many Republican state legislatures have so far for the most part been struck down by the lower courts. And the Supreme Court has left those decisions in place for this election. But they likely will come back to the court for a ruling. The North Carolina transgender bathroom law could make it to the court this term. We just don't know yet.
CORNISH: That's NPR legal affairs correspondent Nina Totenberg. Nina, thanks so much.
TOTENBERG: Thank you, Audie.
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