Justices’ next term won’t be as quiet as the last

Back to full strength, court slated to take on more divisive issues

The sleepy term of cases and controversies just completed by the Supreme Court may have been the calm before the storm.

Left shorthanded for 14 months while the White House and Congress battled over its membership, the high court defied expectations during its 2016 term mostly for what hasn’t happened — yet.

President Barack Obama didn’t get to turn a closely divided court liberal for the first time in decades. Nor did President Trump get to make it decidedly conservative.

After five consecutive years dominated by landmark cases — think Obamacare, same-sex marriage, voting rights, abortion — the docket dwindled both in size and status. Perhaps the biggest case, on transgender rights, was swept away following a policy change by the Trump administration.

Chief Justice John Roberts and his troops managed to keep a lid on the third branch while the other two tangled, emerging with unanimous rulings on some of the more contentious cases.

The April arrival of Justice Neil Gorsuch, the court’s first new member in seven years, merely restored the conservative tilt lost with the death of Justice Antonin Scalia in February 2016.

And on the last day of the term, the oft-rumored retirement of Justice Anthony Kennedy, the court’s swing vote, turned out to be just a rumor.

Fast forward to the court’s 2017 term slated to start in October with a debate over Trump’s travel ban, move to divisive issues such as gay rights, government surveillance and the way election districts are drawn, and end, possibly, with Kennedy’s retirement and a titanic battle over his successor.

“What this term wasn’t,” said Stephen Vladeck, a University of Texas law professor, “next term will be in spades.”

Trump’s election led the winnowing of a list of 21 potential conservative successors to one. From Colorado came Gorsuch, 49, a close follower and fishing buddy of Scalia’s, whose sharp questioning from the bench and clever writing style came close to filling the void.

“He looks like a home run for conservatives,” said John Malcolm, senior legal fellow at the Heritage Foundation, which helped assemble Trump’s list of high court candidates.

With the court back to full strength, the 2017 term’s docket is being decorated with bigger cases. The court will decide whether congressional and state legislative election districts can be drawn with overwhelming precision to benefit one political party. It will decide if police can use cellphone location data to track suspects without a warrant. It will decide if merchants can refuse to serve same-sex couples, if companies can bar employees from class-action lawsuits, and if a federal ban on sports betting in most states violates their regulatory powers.

Then there’s the matter of a famously litigious president, whose effort to bar travelers from six predominantly Muslim nations became the first of what may be many policies to trigger lawsuits.

“Trump himself attacks the courts whenever they rule in a way that he doesn’t like,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “That puts the Supreme Court in a place that it’s not used to being, and where it certainly doesn’t like to be.”

Another place it does not like to be is at the center of a political fight over its membership, as it was for most of the past 16 months. But that, too, is likely to happen in the near future. Kennedy will turn 82 next summer, and with the 2018 Senate elections putting Republicans’ narrow majority at risk, he may choose to retire. Justice Clarence Thomas, 70 by then, also could call it quits in the next few years.

What’s unclear is whether the justices can maintain their sense of comity through a term with tougher cases and a bruising confirmation battle.

“They got in the habit of deciding cases on narrow grounds so that there would be more agreement among themselves, and they seem to have toned down their rhetoric a bit, too,” said David Strauss, a University of Chicago law professor. “You have to hope that will last, now that there are nine justices. But we can’t be sure it will.”

“What this term wasn’t, next term will be in spades.” Stephen Vladeck, University of Texas law professor