Supreme Court takes 'go-slow' approach on divisive issues as the rest of Washington reels
WASHINGTON – A blockbuster abortion case is apparently on hold. A series of gun rights challenges never made it to the lineup. High-profile questions posed by Donald Trump’s presidency are beginning to fade into irrelevance.
As the Supreme Court returns to work Friday after a three-week recess and crosses the midpoint of its term, the cases on deck are far from the type that would give the new 6-3 conservative majority a chance to assert itself in the nation’s most divisive controversies.
By design or by luck, the court’s nine justices are so far steering clear of hostile political debates at a time when the rest of Washington is still reeling from the fallout from the November election, including a second Trump impeachment trial that brought to the fore images of Americans storming the U.S. Capitol on Jan. 6.
Chief Justice John Roberts, nominated by President George W. Bush in 2005, has long sought to maneuver the court around similar partisan tensions. That above-politics approach sometimes drew the ire of Trump, who castigated the high court as “incompetent and weak” for failing to buy into his baseless claims of election fraud.
Even as the court is increasingly taking incoming from the Trump wing of the Republican Party, progressives are leaning hard on President Joe Biden to increase the number of justices as a way to blunt the impact Trump’s of nominees, end lifetime appointments and impose a more rigorous code of judicial ethics.
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"It does seem that the court may be holding back on agreeing to decide some major issues," said Stephen Wermiel, a professor at American University’s Washington College of Law, adding that it could be a deliberate effort or the byproduct of having three new justices seated over the past four years.
"Is it letting the new conservative majority coalesce slowly? Is it to keep from having the court seem as though it is on a juggernaut?" he said. "Maybe some combination of all of those."
As the court gets back to business this week, the justices will decide or hear a few cases sure to draw public attention, including the latest challenge to Obamacare and a lawsuit questioning whether a Catholic foster care agency can turn down gay and lesbian couples. The court's "shadow docket," or emergency cases decided without argument, has bristled with disputes over religious freedom and the death penalty.
Still, those cases have been the exception.
Abortion, guns on back burner
Advocacy groups on both sides of the abortion issue are closely watching a challenge to a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. But the case has been in limbo for months, even as some conservatives see the new majority as the best shot in generations to chip away at the 1973 Roe v. Wade decision that established a constitutional right to abortion.
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The case has been rescheduled for consideration more than a dozen times.
The court had been set to hear oral arguments in a major case involving Trump's funding of his wall on the U.S.-Mexico border and Trump-era asylum policies – both of which evaporated with Biden's win. The court also batted aside a question about whether Trump’s business ties violated the Constitution’s anti-corruption clauses, and it has been sitting on emergency filings involving his tax returns.
And last year, the justices turned aside a series of gun rights cases that groups such as the National Rifle Association hoped would test state and local firearms laws – leaving this year’s docket free from any Second Amendment debate.
Buffeted by politics
Even as Roberts has tried to keep the nation's highest court above the fray, it has been buffeted by a series of bitterly fought confirmation battles, often stoked by Trump’s rhetoric. Justice Amy Coney Barrett’s abrupt confirmation in October following the death of Justice Ruth Bader Ginsburg represented a sea change, making the court the most conservative since President Franklin D. Roosevelt’s administration.
The 6-3 split changes the math, potentially stripping Roberts of the swing-vote status he had possessed. The five other conservatives theoretically no longer need his vote to take up a case or decide it. On the other hand, Barrett, Justice Brett Kavanaugh and Justice Neil Gorsuch are all relative newcomers who arrived at the court following bitter Senate confirmation fights. The court often pumps the brakes when new justices take their seats.
Adding a new member to a group of nine necessarily "changes the dynamic on the court," said Leah Litman, a professor at University of Michigan Law School, because the justices may have to spend time feeling out where consensus lies. Litman said the pandemic has also played a role in the court's cases, forcing the justices to hold over an unusually large number of issues from last year.
What’s not clear is whether the steady-as-she-goes approach will make conservatives restless for the kind of sweeping change they have sought on abortion and other issues for years. Carrie Severino, president of the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, said she hoped the court isn’t sidestepping.
"There are significant questions at the court, but I do think we have to remember that the goal of judges isn’t to dodge difficult decisions, but to decide them," she said.
Health care, voting rights on tap
Though the debates have flown somewhat under the radar, the court has cut new conservative ground in shadow docket cases, shooting down regulations on religious services intended to combat coronavirus. In another emergency case, the court ruled that death row inmates may have a spiritual adviser during their execution.
Early next month, the court will delve into a major voting rights case from Arizona that could decide whether states may ban third-party groups from collecting mail ballots from voters and turning them in to election officials. The practice, which critics call "ballot harvesting," became a major target for Trump in the run-up to the election.
Another case may determine whether the requirement in the 2010 Affordable Care Act that all Americans have some form of health insurance is still constitutional, even though Republicans set the tax penalty for ignoring the requirement to zero. The court is also being asked to decide whether the entire Obamacare law must fall because of that single provision.
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The court may also consider overruling a 30-year-old precedent about religious freedom in a dispute from Philadelphia about whether the city can require a Catholic foster care organization to screen same-sex couples to be foster parents.
"The question is, how quickly will we see the implications" of the 6-3 conservative majority, said Michael C. Dorf, a law professor at Cornell University.
"If we are in something of a go-slow holding pattern," he said, "I don't expect it will last very long."