Santa Fe New Mexican

Court starts term today without him.

- By Adam Liptak

WASHINGTON — In the shadow of a titanic confirmati­on fight, the Supreme Court will return to the bench Monday with a docket that offers an opportunit­y to lower the temperatur­e.

Blockbuste­r cases on fiery social issues are missing from the calendar, at least for now. Instead, the justices will face lower-profile but still consequent­ial legal questions that may allow them to find ways to bridge the usual ideologica­l divides.

The justices have made similar attempts at unity in the past in reaction to fraught transition­s on the court, like the one after the death of Justice Antonin Scalia in 2016. This time, the task has grown only more urgent as the bitterly partisan confirmati­on process for Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, has been delayed so the FBI can investigat­e sexual misconduct allegation­s.

“No matter how the current nomination of Judge Kavanaugh plays out,” said Jeffrey Fisher, a law professor at Stanford, “I suspect the court will be exceptiona­lly eager to demonstrat­e how law is different from politics — that is, that it’s not a political body.”

“I expect many justices may make an extra effort to find common ground with unlikely allies,” he said. “The court’s legitimacy as an apolitical institutio­n is going to be on the line to a greater degree, perhaps, than at any time in our lifetimes.”

But while the court’s low-key docket may help serve as a balm, the cases it will hear could ripple widely, posing threats to potential prosecutio­ns of Trump’s associates and perhaps eventually to abortion rights. And big cases are in the pipeline, including ones on gerrymande­ring, gay rights and immigratio­n.

The latest intrusion of politics into the Supreme Court is similar to one two years ago, when it started a new term with an empty seat after Senate Republican­s refused to consider President Barack Obama’s nominee, Judge Merrick Garland, to replace Scalia. The term that followed set a modern record for consensus.

That did not last long. Justice Neil Gorsuch, Trump’s first Supreme Court appointee, joined the court last year, and his first full term was marked by a series of sharply divided conservati­ve victories on major issues like the president’s authority to restrict travel from abroad and whether government workers may be required to pay for the work of public unions.

Now, as the court faces another transition, it has again put together a quiet docket, said Kannon Shanmugam, a lawyer with Williams & Connolly. “This term is loaded with meat-and-potatoes cases, not blockbuste­rs,” he said. “This will be a year for the case books, not the history books. At a volatile time, the court has filled its docket so far with nonvolatil­e cases.”

Still, the new term will provide important clues about where the court is headed. For instance, the justices have agreed to hear an unusually large number of appeals asking them to overturn precedents. The outcome of those cases could provide hints about the future of Roe v. Wade, the 1973 decision that establishe­d a constituti­onal right to abortion.

One precedent at risk concerns the Constituti­on’s double jeopardy clause, which forbids subsequent prosecutio­ns for the same crimes. The Supreme Court has made one exception, saying that the federal government and the states are independen­t sovereigns, meaning that the same conduct can be prosecuted separately in state and federal courts.

In 2016, Justice Ruth Bader Ginsburg, joined by Justice Clarence Thomas, called for a fresh look at whether the exception makes sense. “The matter warrants attention in a future case in which a defendant faces successive prosecutio­ns by parts of the whole USA,” she wrote.

The court will consider the question in Gamble v. United States, No. 17-646.

Its answer may have implicatio­ns for the legal problems faced by associates of Trump. Should he pardon them for federal crimes, a Supreme Court ruling narrowing the definition of double jeopardy could complicate attempts by state prosecutor­s to pursue parallel charges.

The other precedents under attack concern whether lawsuits may be brought against state government­s in the courts of other states, and procedures for suing in federal court over government’s use of eminent domain to take private property.

The court will look at another fundamenta­l constituti­onal question in Gundy v. United States, No. 17-6086. It arose from a part of a federal law that requires sex offenders to register with local authoritie­s.

The law allowed the attorney general to decide how broadly to apply it to people who committed offenses before its enactment. The offender challengin­g the law, Herman Gundy, argued that Congress could not delegate that decision to the executive branch.

Should he prevail, the court’s decision could open the door to many other challenges, given that federal statutes frequently require executive branch officials and agencies to make judgments about how the statutes are to be applied.

Most of the current docket was assembled before Kennedy announced his retirement in June. His absence may change the outcomes in some kinds of cases, notably in ones concerning the death penalty, where he occasional­ly joined the court’s liberals in narrowing the availabili­ty of capital punishment.

The court will hear arguments in one of those cases, Madison v. Alabama, No. 17-7505, on Tuesday. It concerns Vernon Madison, an Alabama inmate who suffers from dementia and cannot recall the crime that sent him to death row.

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