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Why the Supreme Court may be taking a ‘go slow’ approach

Why We Wrote This

The politics of 2018 may have been marked by extremes and controversy. But on the US Supreme Court, justices appear to be taking a more measured course.

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The U.S. Supreme Court is seen at sunset in Washington Oct. 4, 2018.

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When six justices declined to take a case involving funding for Planned Parenthood this month, court watchers speculated the high court was trying to avoid controversy. For his part, one justice was certain the case was dismissed for purely political reasons. “What explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’ ” wrote Justice Clarence Thomas in a dissent. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.” Last Friday, Chief Justice John Roberts joined the court’s four left-leaning justices to deny a White House request to lift the block on a ban on asylum for immigrants who enter the country illegally. The justices haven’t avoided all politically charged cases. But the court’s institutional integrity has faced stiff challenges, including a bruising confirmation battle and public sparring with President Trump. Jumping on politically divisive cases could further erode that integrity. What does seem clear, says Prof. Ilya Somin, is that “they would very much like to avoid the perception of the Supreme Court as a partisan institution.”

The United States Supreme Court term so far has been highlighted as much by what the court hasn’t done as what it has.
The high court naturally backloads much of its work, with its impact on American society often unloaded in a deluge of June decisions. This term has also seen oral arguments in several important cases, ranging from the scope of the Endangered Species Act to civil asset forfeiture.

But then there are the moves it hasn’t made. Major cases, on prayer by a high school football coach and a defamation lawsuit against Bill Cosby, have been relisted from conference to conference for months without getting the four votes necessary for the justices to take a look at them. And earlier this month two-thirds of the court declined to hear a high-profile case regarding whether states can deny funding to Planned Parenthood.

Justice Clarence Thomas, in a dissent joined by two conservative colleagues, accused the majority of dismissing the case for purely political reasons.

“What explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’ ” he wrote. “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.”

The justices haven’t avoided politically charged cases entirely – they have decided to hear one in February related to adding a citizenship question to the 2020 Census, for example. But the court’s institutional integrity has faced stiff challenges so far this term, including a bruising confirmation battle and public sparring with President Trump. Jumping on politically divisive cases could further erode that integrity, some experts say, but with more litigation on hot-button issues like immigration and abortion brewing in the lower courts, it will be only a matter of time before the high court weighs in.

“The fact one justice called out the rest of court gives this more life than it normally would; that maybe what’s going on here is political avoidance,” says Paul Gowder, a professor at the University of Iowa College of Law. “But maybe that’s a good thing. Historically the court has often tried to not unnecessarily inject itself into truly extreme and radical social controversies too often.”

J. Scott Applewhite/AP
The justices of the U.S. Supreme Court gather for a formal group portrait to include the new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh.

New attacks, tougher defenses

The Trump administration has not been shy about asking the Supreme Court to inject itself into high-profile issues, requesting that the court bypass lower courts and hear legal challenges to the Deferred Action for Childhood Arrivals (DACA) program, as well as the president’s bans on transgender service members and on asylum for immigrants who enter the country illegally. Last Friday, Chief Justice John Roberts joined the court’s four left-leaning justices to deny an administration request to lift a lower court order blocking the asylum ban. The court also declined an administration request to halt a climate change lawsuit brought by youths against the federal government.

The White House’s desire to leapfrog the lower courts may stem from its experience last term. While the Trump administration routinely lost in lower courts, particularly with the travel ban, it won that case when it reached the Supreme Court.

And while the Supreme Court has repeatedly insisted that cases follow the normal legal process through the lower courts, Mr. Trump has continued to accuse members of the federal judiciary of bias against him. The attacks date back to February 2016, when he accused US District Court Judge Gonzalo Curiel of being “very hostile” toward him because of his Mexican heritage. The nation’s highest court stayed silent until late last month.

After Judge John Tigar, of the US District of Northern California, ruled in favor of advocacy groups challenging the asylum ban this fall, Trump accused him of being an “Obama judge” and called the US Court of Appeals for the 9th Circuit, which covers the western United States, a “disgrace.” (After a Dec. 18 hearing, Judge Tigar renewed the temporary injunction against the asylum ban.)

Chief Justice Roberts responded in a statement the next day. “We do not have Obama judges or Trump judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Justices are historically averse to making political statements in public, and direct responses to other branches of the government are virtually unprecedented. This suggests to some observers that Chief Justice Roberts’ desire to reinforce the independence of the judiciary has reached new heights.

“Of all the attacks President Trump has lodged on the judiciary, Roberts has not responded to any of them except this one,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago. “That shows remarkable restraint on his part and speaks volumes about how important he feels about defending the independence of the judiciary.”

“I’m not sure if there was some sort of tipping point,” he adds. “My guess is that it was just the straw that broke the camel’s back, but it was a really heavy straw.”

The Kavanaugh factor

No one except the justices themselves can know if they have been going to extra lengths to avoid potentially divisive cases, but it is not just Trump who has injected the court into political debates this term. Dialing up the political heat more than anything this term, perhaps, was the bitter confirmation of Justice Brett Kavanaugh.

With Trump promising during his presidential campaign to appoint justices who would vote to overturn Roe v. Wade, the 1973 high court decision legalizing abortion nationwide, Justice Kavanaugh’s confirmation was always going to be emotionally charged. His response to allegations that he committed sexual assault as a teenager added an unprecedented layer of partisanship, however, as he characterized the accusations as an orchestrated political hit by Democrats and the Clintons before the Senate Judiciary Committee.

That statement “might well impose a serious constraint on the court,” says Dr. Gowder, author of “The Rule of Law in the Real World.”

“If, after saying something like that, Kavanaugh lands on the court and we get a bunch of 5-4, hard-right opinions, that would make the Supreme Court look like an astonishingly political actor,” he adds. “I think it would look really, really, really bad – in a way that could damage the institution.”

Divisive cases are heading toward the high court nevertheless. This week a federal judge in Texas ruled the entire Affordable Care Act, better known as Obamacare, unconstitutional, a decision that will surely be appealed to the justices if it is upheld by the Court of Appeals for the 5th Circuit. (Roberts cast the deciding vote upholding Obamacare’s constitutionality in 2012.)

The challenges to DACA and Trump’s asylum ban could reach the court, and a number of cases seeking to impose new requirements on abortion clinics are also percolating in the lower courts – restrictions similar to those imposed by Texas that the Supreme Court overturned in 2016.

Justice Anthony Kennedy cast the deciding vote in that case. Kavanaugh, his replacement, is widely considered to be more conservative – though he described Roe during his confirmation hearing as “precedent on precedent.” In a private meeting with Republican Sen. Susan Collins of Maine, he said that it is “not something to be trimmed, narrowed, discarded, or overlooked,” according to the senator.

The firm conservative majority on the Supreme Court has only been in place for a few months, and it will have years to leave its imprint on American jurisprudence. Whether the court is trying to keep a low profile at the start of that era is hard to say.

“It’s possible that’s going on, but at the moment we don’t have enough data points to say,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

What does seem clear at the moment, he adds, is that “they would very much like to avoid the perception of the Supreme Court as a partisan institution.”

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