(Bloomberg) — The U.S. Supreme Court has managed to steer away from controversy in the three months since Justice Antonin Scalia’s death. That’s about to get harder.
The court is opening the last phase of its nine-month term, a six-week stretch that will feature rulings on affirmative action, immigration, abortion, contraceptive coverage, and Puerto Rico’s debt. A batch of opinions is likely on Monday.
Each dispute has the potential to divide the eight justices, highlighting what’s at stake from the Senate’s refusal to consider Judge Merrick Garland, President Barack Obama’s nominee to replace Scalia. The cases could also thrust the court more deeply into the 2016 election fray and the presidential race between Donald Trump and, most likely, Hillary Clinton.
At the same time, the cases offer ways for the justices to rule narrowly and defer consideration of more sweeping issues. Those potential paths of consensus may hold appeal on a court that prides itself on being above politics, even at a time of political tumult.
“I see the justices as almost trying to hide,” said Michael Dorf, a constitutional law professor at Cornell Law School. “There’s a vacancy. There’s this extraordinary inaction by the Senate. There’s a presidential campaign that is highly unusual, the outcome of which will undoubtedly affect the membership of the court.
“And there are cases on the court’s docket that connect to hot-button issues that divide the country pretty sharply.”
The justices have muddled along since Scalia’s death on Feb. 13. Several publicly indicated they would try to avoid a rash of 4-4 ties that might suggest a judiciary in crisis. “All of us are working hard to reach agreement,” Justice Elena Kagan said in April.
Those efforts have helped produce 13 mostly narrow rulings. The biggest — a unanimous decision that said states and cities could keep using their longstanding methods for drawing election district lines — was noteworthy mostly because it didn’t produce the redistricting transformation conservatives had sought.
So far, the court has produced only two deadlocked results, including one that let 20-plus states continue to require public-sector workers to help fund the unions that represent them. That number may now start to climb.
Contraceptive coverage mandate
The court risks deadlock in a fight involving religious groups that say the Obama administration is forcing them to facilitate what they consider immoral contraceptive coverage, and a clash over congressional power to authorize consumer lawsuits. The justices also might split over the president’s plan to defer deportation for millions of unauthorized immigrants.
For some, the biggest mystery is why the court hasn’t already issued a stack of deadlocked rulings, given the unlikelihood that a tie-breaking ninth justice will be seated before November.
Some cases are proving harder to resolve than others. The consumer-lawsuit dispute is pending more than six months after the Nov. 2 argument. The case, which concerns an allegedly error-riddled Internet profile, tests the power of Congress to authorize suits by consumers who haven’t suffered any clear harm.
“They’re acting as if they’re trying to avoid 4-4 splits when possible,” said David Strauss, a constitutional law professor at the University of Chicago. “If they can decide a case narrowly in a way that will get five or more votes, they will do that.”
Yet some cases could be polarizing no matter what the court decides.