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As US Supreme Court begins fall term with eight justices split ideologically, the potential impact on the major cases

 The U.S. Supreme Court is shown on December 4, 2017 in Washington, DC.
The U.S. Supreme Court is shown on December 4, 2017 in Washington, DC.
Win McNamee/Getty Images

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With the nation’s focus locked firmly on the ongoing F.B.I. investigation into claims of sexual misconduct against Supreme Court nominee Brett Kavanaugh and the upcoming Senate vote to confirm him, it’s not hard to lose sight of the fact that the justices who are on the Supreme Court still have cases to hear.

On Monday, much to the chagrin of Republicans who had hoped it would begin this term with Kavanaugh confirmed and a conservative majority cemented, the High Court began its fall term with eight justices on the bench -- four liberal and four conservative.

Among the cases of note that they will be considering this term are Madison v. Alabama, which will be heard Tuesday and centers around whether executing a person who suffers from dementia and doesn’t remember committing a crime could be considered cruel and unusual punishment. And while it’s not particularly grabby in terms of its subject matter, Gamble v. United States is one case that many Supreme Court watchers are saying could have implications for presidential pardon power.

The case looks at the double jeopardy provision of the 5th Amendment which prevents someone from being tried for the same crime twice in federal court. The High Court has set precedent for this with the so-called “dual sovereignty exception” which states that someone can be tried for the same crime at the federal and state level because state governments and the federal government are separate sovereign entities as far as the Constitution is concerned.

But depending on how the court rules, there are some who say that if the court rules to throw out the dual sovereignty exception and President Trump decides to pardon someone close to him that has been convicted of a federal crime, like Paul Manafort, it could prevent states from prosecuting those individuals at the state level.

Today on AirTalk, we’ll run down the major cases that Supreme Court watchers are keeping an eye on this term and talk about how the bench being down a justice might impact how it rules in certain cases.


Greg Stohr, Supreme Court reporter for Bloomberg News; he tweets @GregStohr

Stephen Vladeck, professor of law at the University of Texas at Austin, CNN Supreme Court analyst, editor-in-chief of the Just Security blog and senior contributor to the Lawfare blog, both of which focus on national security law; he tweets @steve_vladeck

Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review; he tweets @ishapiro