With Gor­such, Supreme Court to take on weight­ier cases next term

The Washington Times Weekly - - Politics - BY ALEX SWOYER

An un­der­staffed U.S. Supreme Court left jus­tices with a bor­ing docket this year, but le­gal an­a­lysts said the ad­di­tion of Jus­tice Neil M. Gor­such prom­ises to make the next term, be­gin­ning in Oc­to­ber, a block­buster.

Al­ready on tap for the court are Pres­i­dent Trump’s travel ban — a case that could re­set the lim­its of pres­i­den­tial pow­ers — as well as an­other round in the bat­tle be­tween gay rights groups and de­vout Chris­tians.

The jus­tices also have agreed to hear a chal­lenge to Wis­con­sin’s ger­ry­man­dered leg­isla­tive dis­tricts, a case that could fun­da­men­tally change the bal­ance of power on Capi­tol Hill and in state­houses across the coun­try.

It’s a much heftier caseload than the just-con­cluded term, in which the big­gest cases in­volved trade­mark law and a limited ques­tion on churches’ ac­cess to gov­ern­ment funds.

Re­view­ing the just-fin­ished ses­sion, le­gal schol­ars said the court shied away from big cases.

“For three-quar­ters of the term, it was a jus­tice short, so that makes it lame,” said Robert Tut­tle, a law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity. “It did hold off on tak­ing a num­ber of cases.”

Per­haps be­cause of the smaller court, the jus­tices took fewer cases this term, con­sid­er­ing just 71. They heard 82 cases in the 2015-2016 term, which could have im­pacted the lower num­ber of high­pro­file cases heard this year.

Mr. Tut­tle said he ex­pects the next term to have more “flashy” rul­ings.

Amid a lack of head­lin­ing cases, Jus­tice Gor­such’s con­fir­ma­tion to the seat left va­cant by the death of Jus­tice An­tonin Scalia was the big­gest news out of the high court. In his two months on the bench, Jus­tice Gor­such made a splash with his ea­ger­ness to get in­volved, writ­ing force­ful opin­ions on sev­eral de­ci­sions.

El­iz­a­beth Wy­dra, pres­i­dent of the Con­sti­tu­tional Ac­count­abil­ity Cen­ter, said business in­ter­ests also are do­ing well in the high court when judged by cases in which the U.S. Cham­ber of Com­merce took a stance.

“We have found over all that [Chief Jus­tice John G.] Roberts’ court is the most pro-cor­po­rate in the mod­ern era, but this term the Cham­ber had a whop­ping 80 per­cent suc­cess rate in the Supreme Court,” said Ms. Wy­dra. “So, that I think is a re­mark­able con­sol­i­da­tion of power for the business lobby in the Supreme Court this term.”

With an eight-mem­ber court, the jus­tices man­aged to find more una­nim­ity. Some 59 per­cent of their cases were de­cided with­out dissent, com­pared with 48 per­cent una­nim­ity dur­ing the pre­vi­ous term, when Scalia was on the bench.

Thomas Gold­stein, a part­ner at Gold­stein & Rus­sell and co-founder of SCOTUSblog, said he ex­pects less una­nim­ity now that the court has re­turned to nine jus­tices and be­cause of its caseload.

“It’s ex­tremely likely over the next few terms you will get his­tor­i­cally high, ide­o­log­i­cally frac­tured 5-4 de­ci­sions,” said Mr. Gold­stein.

He said Jus­tice Gor­such could be a big fac­tor.

“With Jus­tice Gor­such, I think we’re go­ing to see a down-the-line doc­tri­naire con­ser­va­tive, to the right of Jus­tice [Sa­muel A.] Al­ito even,” said Mr. Gold­stein. “Jus­tice Gor­such brings a re­newed, a strong, con­ser­va­tive en­ergy that ac­tu­ally Jus­tice Scalia had kind of passed.”

One case that might get an ide­o­log­i­cally di­vided split in­volves a Chris­tian baker who ran afoul of a Colorado civil rights panel af­ter re­fus­ing to bake a cake for a same-sex wed­ding. The case had been pend­ing be­fore the court since last year, but the jus­tices agreed only last week to hear it, leav­ing court watch­ers spec­u­lat­ing about why it took so long for the jus­tices to take it up.

“About the only thing you can say for sure is that the jus­tices are closely di­vided and that they feel strongly about the is­sues,” said John El­wood, a lawyer and SCOTUSblog writer.

The case was put on the docket two years af­ter the Supreme Court de­cided that same-sex cou­ples have a con­sti­tu­tional right to mar­riage.

An­a­lysts said the bak­ery case could show how far the jus­tices want to go in the clash be­tween gay rights and re­li­gious be­liefs.

“It is some­thing that af­fects not just the lit­i­gants, but it is the kind of thing we are see­ing over and over again across the coun­try,” said Car­rie Sev­erino, chief coun­sel at the con­ser­va­tive Ju­di­cial Cri­sis Net­work.

The travel lim­its could over­shadow ev­ery­thing else at the be­gin­ning of the court’s term — if the jus­tices ever get to it.

In their first go-around last week, the jus­tices al­lowed part of the 90-day halt on vis­i­tors from six ma­jor­ity-Mus­lim coun­tries to take ef­fect. If Mr. Trump uses the time to come up with a new vet­ting plan, as he said when he is­sued the or­der, then the travel lim­its could ex­pire by the time the court con­venes in Oc­to­ber.

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