Justices back at work but dodging politics
Hot-button issues are on the back burner for now
WASHINGTON – A blockbuster abortion case is apparently on hold. A series of gun rights challenges never made it to the lineup. High-profile questions posed by Donald Trump’s presidency are beginning to fade into irrelevance.
As the Supreme Court returns to work Friday after a three-week recess and crosses the midpoint of its term, the cases on deck are far from the type that would give the new 6-3 conservative majority a chance to assert itself in the nation’s most divisive controversies.
By design or by luck, the court’s nine justices are so far steering clear of hostile political debates at a time when the rest of Washington is still reeling from the fallout from the November election, including a second Trump impeachment trial that brought to the fore images of Americans storming the U.S. Capitol on Jan. 6.
Chief Justice John Roberts, nominated by President George W. Bush in 2005, has long sought to maneuver the court around similar partisan tensions. That above-politics approach sometimes drew the ire of Trump, who castigated the high court as “incompetent and weak” for failing to buy into his baseless claims of election fraud.
Even as the court is increasingly taking incoming from the Trump wing of the Republican Party, progressives are leaning on President Joe Biden to increase the number of justices as a way to blunt the impact Trump’s of nominees.
“It does seem that the court may be holding back on agreeing to decide some major issues,” said Stephen Wermiel, a professor at American University’s Washington College of Law, adding that it could be a deliberate effort or the byproduct of having three new justices seated over the past four years.
“Is it letting the new conservative majority coalesce slowly? Is it to keep from having the court seem as though it is on a juggernaut?” he said. “Maybe some combination of all of those.”
As the court gets back to business this week, the justices will decide or hear a few cases sure to draw public attention, including the latest challenge to Obamacare and a lawsuit questioning whether a Catholic foster care agency can turn down gay and lesbian couples. The court’s “shadow docket,” or emergency cases decided without argument, has bristled with disputes over religious freedom and the death penalty.
Still, those have been the exception.
Abortion, guns on back burner
Advocacy groups on both sides of the abortion issue are closely watching a challenge to a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy. But the case has been in limbo for months, even as some conservatives see the new majority as the best shot in generations to chip away at the 1973 Roe v. Wade decision that established a constitutional right to abortion.
The case has been rescheduled for consideration more than a dozen times.
The court had been set to hear oral arguments in a major case involving Trump’s funding of his wall on the U.S.Mexico border and Trump-era asylum policies – both of which evaporated with Biden’s win. The court also batted aside a question about whether Trump’s business ties violated the Constitution’s anti-corruption clauses, and it has been sitting on emergency filings involving his tax returns.
And last year, the justices turned aside a series of gun rights cases that groups such as the National Rifle Association hoped would test firearms laws – leaving this year’s docket free from any Second Amendment debate.
Buffeted by politics
Even as Roberts has tried to keep the nation’s highest court above the fray, it has been buffeted by a series of bitterly fought confirmation battles. Justice Amy Coney Barrett’s abrupt confirmation in October following the death of Justice Ruth Bader Ginsburg represented a sea change, making the court the most conservative since President Franklin D. Roosevelt’s administration.
The 6-3 split changes the math, potentially stripping Roberts of the swingvote status he had possessed. The five other conservatives theoretically no longer need his vote to take up a case or decide it. On the other hand, Barrett, Justice Brett Kavanaugh and Justice Neil Gorsuch are all relative newcomers.
The court often pumps the brakes when new justices take their seats.
Adding a new member to a group of nine necessarily “changes the dynamic on the court,” said Leah Litman, a professor at University of Michigan Law School, because the justices may have to spend time feeling out where consensus lies. Litman said the pandemic has also played a role in the court’s cases, forcing the justices to hold over an unusually large number of issues from last year.
What’s not clear is whether the steady-as-she-goes approach will make conservatives restless for the sweeping change they have sought on abortion and other issues for years. Carrie Severino, president of the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, said she hoped the court isn’t sidestepping.
“There are significant questions at the court, but I do think we have to remember that the goal of judges isn’t to dodge difficult decisions, but to decide them,” she said.
Health care, voting rights on tap
The court has cut new conservative ground in shadow docket cases, shooting down regulations on religious services intended to combat coronavirus. In another emergency case, the court ruled that death row inmates may have a spiritual adviser at their execution.
Next month, the court will delve into a major voting rights case from Arizona that could decide whether states may ban third-party groups from collecting mail ballots from voters and turning them in to election officials. The practice, which critics call “ballot harvesting,” became a major target for Trump in the run-up to the election.
Another case may determine whether the requirement in the 2010 Affordable Care Act that all Americans have some form of health insurance is still constitutional, even though Republicans set the tax penalty for ignoring the requirement to zero.
The court may consider overruling a 30-year-old precedent about religious freedom in a dispute from Philadelphia about whether the city can require a Catholic foster care group to screen same-sex couples to be foster parents.
TOPEKA, Kan. – Former U.S. Sen. Bob Dole, 97, the elder statesman of Kansas Republican politics, has been diagnosed with advanced lung cancer, he said in a statement Thursday.
Dole, who represented Kansas in the U.S. Senate from 1969 to 1996 and ran for president in 1996, said he would begin treatment Monday.
“While I certainly have some hurdles ahead, I also know that I join millions of Americans who face significant health challenges on their own,” Dole said in a statement.
About 40% of all lung cancer diagnoses
fall into the Stage 4 bracket, according to the Cancer Treatment Centers of America. The five-year survival rate for those diagnoses is 10%.
Sen. Roger Marshall, who holds the seat formerly occupied by Dole, said in a statement that “I have not known a better public servant” than his mentor.
“I have zero doubt in my mind Senator Dole will take this challenge head on the same way as other challenges he faced in his life,” Marshall said. “Just as he did as one of the heroes from our greatest generation, in this battle, Senator Dole will continue to show us the way through hope, resiliency, and perseverance.”
Dole was elected to the U.S. House of Representatives in 1961 and served eight years before being elected to the U.S. Senate. He would not leave that body until resigning in 1996 to focus on his presidential campaign, a race he eventually lost to Bill Clinton.
For the final decade of his Senate career, Dole served as the Republican floor leader, including three years as Senate majority leader. He also was chair of the Republican National Committee from 1971 to 1973. He has maintained a low public profile in recent years, although Dole was the lone former presidential nominee to attend the 2016 Republican National Convention. He also made campaign appearances by phone for Marshall in November.
Dole has been treated for health problems, including hospitalizations at Walter Reed National Military Medical Center in 2012 and again in 2017. In 2001, he had surgery to treat an aneurysm.