Federal Courts and Nominations

Sluggish Supreme Court Poised to Deliver Big Decisions

From gerrymandering to cake artists, the court has a full plate

The Supreme Court started the current term in October with a docket that could have a lasting impact on politics and culture, including major cases on partisan gerrymandering and LGBT rights.

Six months later, the justices are done with oral arguments and approaching the end of the term in June. And they haven’t crossed off much on their to-do list.

“It’s even hard to imagine, given how slowly the court has been working through its docket, simply the crush of momentous decisions that are going to come down in the month of June,” Elizabeth Wydra, president of the Constitutional Accountability Center, said at an event last week.

The Supreme Court typically leaves its contentious and high-profile cases for closer to the end of the term. But the justices have adopted a historically slow pace through April, issuing just 23 opinions, said Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of a high court statistics blog, Empirical SCOTUS.

Speculation is rampant about what’s going on behind closed doors on some of the big cases — such as one about arbitration that was argued on the first day of the term in October. Some legal experts say the court seems to be feeling out a new dynamic with Justice Neil Gorsuch in his first full term.

Feldman said some recent decisions had fractured the justices, with each seemingly wanting to have their own say, which “shows they’re having trouble finding that point of consensus not along ideological grounds.”

There are 39 cases that were argued this term left on the court’s docket.

“As somebody who watches the court’s term very closely, I don’t know that I can remember a term with so many big-ticket cases on the court’s docket,” former Solicitor General Paul Clement told the Republican National Lawyers Association last week.

Partisan gerrymandering

The justices struggled at oral arguments Oct. 3 in a case out of Wisconsin about whether a state’s political maps can be challenged on the basis that they entrench a benefit to one political party over another.

The court has never allowed such a challenge but hasn’t ruled it out either, and a major hitch for the justices is what standard judges could use to decide whether partisan gerrymandering occurred. The decision could have broad impact on the American political landscape and how congressional districts are drawn, particularly after the 2020 census.

But then in December, with the Wisconsin case still undecided, the court announced it would also decide a version of the same issue from Maryland focused on the 6th District, which covers what’s known as the Panhandle, Frederick and western Montgomery County. The justices seemed no closer to a solution when they heard arguments in the Maryland case in March.

Justice Anthony M. Kennedy, frequently the swing vote, is likely to be the deciding vote. A challenge to North Carolina’s congressional districts on a different legal theory is also pending at the court, waiting on the outcome of the cases.

Civil rights

Kennedy is also expected to cast the deciding vote in a case that pits LGBT rights against the free speech and free exercise rights of those with religious objections. It is the latest front in a social debate that has unfolded in courts across the country in recent years.

Kennedy, currently the longest-serving justice, appeared torn at oral arguments in December about a Colorado businessman and self-described “cake artist” who declined to bake wedding cakes for same-sex weddings. The court is being asked to draw a line between religious liberty and antidiscrimination laws — two issues Kennedy has backed since joining the high court in 1988.

At one point, Kennedy posed a question about whether a business could put out a sign that says it won’t bake cakes for gay weddings: “Would you not think that an affront to the gay community?” he asked.

But later Kennedy criticized the Colorado officials who ruled against the baker, saying “it seems to be the state has been neither tolerant or respectful” of Jack Phillips, the man at the center of the case.

In a case out of Ohio, the justices appeared divided in January arguments about how the Buckeye State and others can remove voters from registration rolls without violating federal laws to protect people who simply choose not to vote.

And the court still hasn’t decided major labor law cases argued on the first day of the term, centered on arbitration clauses in employment contracts, particularly those that prohibit workers from pursuing class action lawsuits in courts.

Travel ban and other late cases

Some of the court’s latest decisions will likely be on Trump’s travel ban and online sales taxes, since those were among the last oral arguments heard in April.

There was little indication at those arguments that a majority of the justices were ready to strike down the travel ban, which the state of Hawaii has challenged as unlawful. The court is also considering whether it unconstitutionally targets Muslims, who are a majority in most of the countries facing travel restrictions.

The justices allowed the administration to implement the current version of the ban, the third overall, in December. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., as well as Kennedy, aired reservations about having federal courts rein in a president on national security.

In the sales tax case, the justices seemed to wish that Congress would step in and resolve the issue with legislation — something that hasn’t happened in the past 26 years.

South Dakota has asked the Supreme Court to overturn a 1992 high court ruling that bars states from collecting sales tax from out-of-state vendors, which they argue is outdated because of the growth of online retailers and costs states billions in lost tax revenues each year.

The justices appeared ready to keep the decision because of concerns about the unknown consequences of overturning it, and a sense that Congress is better able to weigh issues of interstate commerce and craft a solution.

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