Cautious high court stresses consensus
WASHINGTON — The Supreme Court was short-handed for most of the term that ended Monday, and it responded with caution, setting a modern record for consensus.
“Having eight was unusual and awkward,” Justice Samuel Alito told a judicial conference a few days after Justice Neil Gorsuch joined the court in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”
As Alito’s remarks suggested, the next term, starting in October, will be very different from the past one, which was defined by the long vacancy caused by the death of Justice Antonin Scalia in February 2016 and the court’s strenuous efforts to avoid 4-4 votes.
The court already has agreed to hear cases on President Donald Trump’s travel ban, a clash between gay rights and claims of religious freedom, constitutional limits on partisan gerrymandering, cellphone privacy, human rights violations by corporations and the ability of employees to band together to address workplace issues.
“Chalk it up to pent-up demand,” said Pratik A. Shah, a lawyer with Akin Gump Strauss Hauer & Feld. “The eight-member court dodged the most provocative or consequential cases, and the new nine-member court is making up for lost time.”
The last term was marked by a level of agreement unseen at the court in more than 70 years. That was a consequence of a lack of divisive disputes on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks.
The court issued “a lot of what I’d call cautiously unanimous opinions — that is, opinions that are carefully written to decide cases on relatively narrow grounds and to steer clear of big jurisprudential tar pits,” said Jeffrey L. Fisher, a law professor at Stanford.
The court did deadlock twice, in two immigration cases. Those cases will be re-argued before all nine justices in the court’s next term. The court also sent a case on a cross-border shooting back to a lower court for further consideration.
Recent terms have ended with blockbuster decisions on gay rights, abortion, affirmative action, health care and voting. “We got used to the idea that every year the court decides several of the biggest national political issues — six or seven consecutive ‘terms of the century’ — but this year saw a regression to the mean,” said Ilya Shapiro, a lawyer with the libertarian Cato Institute.