As the White House and Congress descend deeper into turmoil, the US Supreme Court is showing signs of becoming as politically fractured as the rest of Washington.
It may likewise be shifting more to the right.
Indications from the few decisions issued so far and from oral arguments in yet-to-be decided cases suggest the five conservatives on the nine-member bench may be ready to wield their majority power. Led by Chief Justice John Roberts and joined by President Donald Trump appointee Justice Neil Gorsuch, the five have already prevailed in recent ideologically charged cases regarding prisoners’ civil rights and immigrants in custody.
Historic delays in issuing decisions and at-times sharp jabs between justices on the bench also point to disharmony at a time when the Supreme Court could play a larger role in American life. The Trump administration faces numerous lawsuits over its policies, including new challenges based on the administration’s announcement that the Census will include a question about individual’s citizenship.
A looming question since January 2017 has been whether the justices would become a check on Trump, who has flouted legal norms, criticized federal judges, and revealed disdain for the rule of law.
In the Supreme Court dispute over immigrants denied bail, liberal Justice Stephen Breyer took the unusual step late last month of reading a lengthy and impassioned dissenting statement from the bench, warning of a new breach of constitutional due process. Such dramatic oral dissents typically occur later in the session, when tensions rise as the court faces a late June deadline and highly anticipated cases with national implications.
Since the 2017-18 term opened last October, the justices have issued only 17 signed decisions. That is the lowest number through the end of March for any session since Roberts took office in 2005, according to Adam Feldman, whose Empirical SCOTUS blog examines trends at the Supreme Court of the United States. The all-time high for Roberts’ tenure was 32 decisions during this period, the previous low was 19.
It is plain more cases are being hard-fought behind the scenes.
During public arguments, the nine have appeared sharply divided in disputes over politically gerrymandered voting districts; a baker who declined to make a wedding cake for a gay couple based on his religious beliefs; and public-sector employees who do not want to pay union fees.
Beyond those cases already subject to oral arguments, the justices have been wrangling for three months over how to respond to the Trump administration’s request to dissolve a lower court decision that cleared the way for pregnant Central American teenager who entered the US illegally to obtain an abortion. Administration lawyers asked the justices to discipline the girl’s ACLU lawyers for helping her to secure the abortion before Trump administration attorneys appealed the lower court decision.
Such is the discord already simmering as the justices prepare to hear another dispute over politically gerrymandered voting districts – from Maryland, on Wednesday – and over Trump’s travel ban on certain majority-Muslim countries, in April.
The justices have yet to resolve a separate political gerrymandering case, from Wisconsin, heard on October 3.
To be sure, the justices could iron out their differences and begin setting a new pattern of consensus. But the signals so far do not suggest themes of harmony.
Ramping up the suspense is the possible retirement of moderate conservative Justice Anthony Kennedy. Now 81, Kennedy in 2016 began talking privately about retiring as the presidential election campaign was underway.
He has stayed through another full term and may be content to continue as the decisive swing vote as long as his health holds out. The next eldest justices, Breyer, 79, and Ruth Bader Ginsburg, 85, are liberals who have shown no interest in slowing down or stepping down.
Gorsuch joins a more polarized court
Unlike in past eras when individual justices were not so predictable based on party, the current five appointed by Republican presidents generally vote along conservative lines, and the four named by Democratic presidents vote on the liberal side.
The incendiary atmosphere of the Obama and Trump eras and the increasingly polarized judicial confirmation process may be creating a more polarized Supreme Court.
“There are no more stealth justices, no more surprises,” said Harvard University law professor Richard Fallon. “That means the person (a president chooses) is going to have a strong disposition to line up on one side or another” accelerating conflict on the court.
So far, Gorsuch has proved a strong vote for the right. On the left, Justice Sonia Sotomayor, President Barack Obama’s first nominee, has been consistently liberal.
Yet, in some years, individual justices from both sides of the ideological divide have sought middle ground, including Roberts, a 2005 appointee of Republican George W. Bush; Kennedy, a 1988 justice chosen by Republican Ronald Reagan; Breyer, a 1994 appointee of Democrat Bill Clinton; and Justice Elena Kagan, Obama’s 2010 choice.
Those four justices tried to work toward greater consensus after conservative Justice Antonin Scalia died in February 2016 and the court went more than a year without a successor because of Senate politicking. Senate Majority Leader Mitch McConnell, R-Kentucky, blocked all action on Obama nominee Merrick Garland, the chief judge of the US Court of Appeals for the District of Columbia Circuit.
The Scalia seat was filled in April 2017, and the Supreme Court returned to a full contingent of nine when the Republican-controlled Senate confirmed Gorsuch.
In late February, Gorsuch wrote the court’s 5-4 ideologically tinged opinion in the case of an Illinois prisoner whose eye socket was crushed and vision permanently impaired by two prison guards. At issue was the percentage that the inmate was required to pay in attorneys’ fees after he won his civil rights lawsuit. The Gorsuch majority interpreted the relevant statute to require 25% of his $307,700 judgment toward the attorneys’ fees. Dissenting liberals said the trial judge who heard the case of the guards’ brutality had the discretion to determine that the prisoner pay 10%.
Gorsuch has aligned more to the right than Scalia, showing a strong collaboration with Justice Clarence Thomas. Yet, overall, Gorsuch appears to be seeking to demonstrate his independence. In a case testing whether the Constitution requires a warrant before police may obtain cell phone data from companies that provide cell service, Gorsuch took a counterintuitive approach. Gorsuch focused on the property rights of the cellphone user to the stored data, rather than the privacy expectations that concerned most of the justices.
This is Gorsuch’s first full term, and relations among justices are still shifting. It is a truism at the nation’s highest court that the change of a single justice alters the relationship among all nine. New patterns emerge on the law and in social relations.
Addressing the latter, Ginsburg said earlier this year, “I respect all of my colleagues – and genuinely like most of them.”