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Washington CNN  — 

When Chief Justice John Roberts opened the Supreme Court’s annual session on Monday, he declared from the bench, in traditional fashion, that the prior term was officially “now closed” and the new 2018-2019 term was “now convened.”

It was the language of a fresh start. But there’s a hole on the bench. And these eight justices, painfully aware of what has transpired at the Capitol across the street with President Donald Trump’s nomination of Brett Kavanaugh, are haunted by history.

They have been thrown back to the uncertain era of eight, from February 2016 to April 2017, when the Republican-controlled Senate blocked action on Democrat Barack Obama’s choice to succeed the late Justice Antonin Scalia. The events of June 27, when the justices were last together and Anthony Kennedy shocked them with his retirement announcement, hang unresolved in the air.

The notion that it’s business as usual was undercut, symbolically and in substance.

The associate justices repositioned their tall black chairs on the two sides of Roberts, in their new order of alternating seniority without Kennedy. Four justices sat to Roberts’s right (Clarence Thomas, Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch). But to his left, there were only three justices (Ruth Bader Ginsburg, Samuel Alito and Elena Kagan).

At the end of the bench, where the new justice would sit, was an empty space and idle microphone.

In their first case, testing the reach of federal environmental law, the eight appeared to be dividing along familiar ideological and political lines, conservatives versus liberals.

While oral arguments are not a reliable gauge of how the court will rule, it is reasonable to anticipate the possibility of another series of 4-4 deadlocks on national legal controversies.

That would mean the high court fails to set a national standard on some bubbling controversies, whether regarding the Endangered Species Act, in dispute Monday, or related to a Tuesday case brought by a Death Row inmate with dementia, when elderly convicts may be exempt from capital punishment.

WASHINGTON, DC - OCTOBER 01: U.S. President Donald Trump speaks during a press conference to discuss a revised U.S. trade agreement with Mexico and Canada in the Rose Garden of the White House on October 1, 2018 in Washington, DC. U.S. and Canadian officials announced late Sunday night that a new deal, named the 'U.S.-Mexico-Canada Agreement,' or USMCA, had been reached to replace the 24-year-old North American Free Trade Agreement.  (Photo by Chip Somodevilla/Getty Images)
Trump calls for comprehensive Kavanaugh probe
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Politics or ‘umpires?’

None of the justices have spoken publicly on the Kavanaugh nomination, and the court is likely to continue operating as if above all the politicking.

But the repercussions for the court from this vacancy could be more severe than during the Scalia fallout. Kavanaugh’s partisan defense last Thursday, blaming the sexual assault allegations of Christine Blasey Ford on Democrats, specifically mentioning “revenge on behalf of the Clintons,” stands in contrast to the usual judicial insistence of neutrality.

Of all the current justices, Roberts has been most insistent that judges are not political. He famously used the “umpire” metaphor in his 2005 confirmation hearings, which Kavanaugh adopted in his first Senate hearings.

Roberts, early in his tenure, also declared to C-SPAN: “I think the most important thing for the public to understand is that we are not a political branch of government. They don’t elect us. If they don’t like what we’re doing, it’s, more or less, just too bad … other than impeachment.”

In a practical vein, 4-4 splits may not be the only consequence for a shorthanded court. Without a full slate of justices, they may also avoid taking up substantial new questions, as happened when the Senate had stalled on Obama nominee Judge Merrick Garland. Among the contentious issues currently pending for possible review is whether federal law prohibiting sex discrimination covers bias based on sexual orientation and gender identity. (Under court rules, it takes four votes to agree to take up an appeal, and five votes to decide it.)

Yet, while the lack of a ninth justice is not optimal institutionally, it delays for liberals their bleak fate in the minority. The switch of centrist conservative Kennedy, who voted with liberals on social policies such as abortion and gay rights, with a reliably conservative justice would guarantee a shift to the right.

Roberts, 63, has known Kavanaugh since the early 1990s when he was a deputy US solicitor general and Kavanaugh, 10 years younger, had a fellowship in the office.

Kavanaugh, who became a top aide to President George W. Bush, helped in Bush’s appointments of Roberts, first to the US Court of Appeals for the District of Columbia Circuit in 2003, and then two years later to the US Supreme Court. Kavanaugh himself has been on the DC Circuit since 2006.

No matter how Roberts regards the current Kavanaugh ordeal, the chief justice will likely respond, when it is over, as he did when Scalia’s seat was filled after the 422-day vacancy.

“I want to point out one thing,” Roberts said during an appearance at Rensselaer Polytechnic Institute in April 2017, “Throughout this whole process, the Supreme Court has been quietly going about its business of deciding the cases before it, according to the Constitution, in a completely nonpartisan way.”