USA TODAY US Edition

Justices back at work but dodging politics

Hot-button issues are on the back burner for now

- John Fritze

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.

 ?? LEAH MILLIS/POOL/AFP VIA GETTY IMAGES ?? President Donald Trump greets Supreme Court Chief Justice John Roberts as he arrives to deliver his State of the Union address on Feb. 4, 2020.
LEAH MILLIS/POOL/AFP VIA GETTY IMAGES President Donald Trump greets Supreme Court Chief Justice John Roberts as he arrives to deliver his State of the Union address on Feb. 4, 2020.
 ?? HARRY HAMBURG/POOL/AP ?? Bob Dole waves as he leaves the U. S. Capitol in 1996 with his wife Elizabeth. The ex-senator said he has advanced lung cancer.
HARRY HAMBURG/POOL/AP Bob Dole waves as he leaves the U. S. Capitol in 1996 with his wife Elizabeth. The ex-senator said he has advanced lung cancer.

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