Federal Courts and Nominations

The Daily 202: The Supreme Court has a blockbuster season

THE BIG IDEA: Let’s set aside for a moment the potential coming attractions.

Whether, for instance, the Supreme Court might be called upon sooner rather than later to decide the fate of DACA and the “dreamers” brought here as undocumented children. Or — just to pull a hypothetical from thin air — whether a special counsel has the power to subpoena a president.

There are already a gracious plenty of blockbuster cases on the Supreme Court’s docket — as well as signs that the fractured court is having a difficult time coming to agreement on them. (There is also a fractured justice; Sonia Sotomayor had shoulder replacement this week after she broke it in a fall.)

“The sweep of this term is simply breathtaking,” Elizabeth Wydra, president of the Constitutional Accountability Center said at an event last week. “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.” 

A brief review of just a few:

  • Whether President Trump exceeded his power or violated the Constitution with his executive order banning most travel from a small group of mostly Muslim countries.
  • If the court will find a state’s redistricting efforts so infected with partisan bias that it must be thrown out, something the justices have never done before. Cases from Wisconsin and Maryland present the question, and the court is considering charges of racial gerrymandering in Texas.
  • Whether a baker in Colorado was within his rights to refuse to create a wedding cake for a gay couple, citing his religious beliefs, even though the state’s public accommodations law specifically forbids discrimination based on sexual orientation.
  • Whether the court’s 40-year-old precedent allowing public employee unions to collect fees from the nonmembers it represents in collective bargaining should be overturned, a longtime goal of some conservative justices and one that organized labor says would be crippling.
  • If New Jersey has the right to lift its own longtime ban on sports betting, a move that would likely set off a chain reaction among other states that want to get in on the billions of dollars now mostly wagered illegally.

It’s not surprising that such cases are taking time. But the court has also been slow in deciding less controversial matters.

“The court was already on a slow trajectory in previous terms and this term fits the pattern,” writes Adam Feldman, who keeps detailed track of the court at his blog Empirical Scotus. “The court’s pace this term is also a product of diverse opinions among the justices and the difficulty in reaching consensus.”

For the 14 months they were only eight, following the death of Justice Antonin Scalia in February 2016, the justices decided cases narrowly and tried hard to reach consensus. Now there are nine, with conservative Justice Neil M. Gorsuch in the midst of his first full term, and there have been more divided decisions.

More than that, each justice seems to be more interested in speaking for his or her self, with a thick sheaf of concurring and dissenting opinions in more cases.

Consider this lineup in Jesner v. Arab Bank, in which the court decided foreign corporations cannot be sued under a centuries-old law for their alleged complicity in human rights atrocities that occur overseas: The justices issued four opinions in the splintered decision.

Justice Anthony Kennedy and Chief Justice John G. Roberts Jr. are most likely writing the decisions in the term’s biggest cases; their low productivity so far indicates they have other fish to fry. Kennedy has authored only the opinion in Jesner so far this term. Roberts has turned in only a minor decision in which there were no dissenters.

Of course, the real decision that everyone wants from Kennedy is whether he will be back for another term next October. If Trump can replace Kennedy, the court’s pivotal justice, he will affect the court for years. Administration sources say they are in the dark about Kennedy’s plans, and perhaps that is no surprise.

The Supreme Court treasures secrecy. The Trump White House is full of leaks. If Kennedy decides to depart, the administration probably won’t learn until it happens.