For two weeks in a row, the Supreme Court has met behind closed doors in its ornate conference room to pore over an unusual number of controversial issues in order to decide whether to take up the cases this term.
So far, the justices have said nothing publicly.
Instead, they’ve issued orders lists that make no mention of the government’s efforts to terminate the Deferred Action for Childhood Arrivals immigration program, the transgender military ban, abortion, LGBT employment discrimination and the Second Amendment.
Each week, Washington has waited, poised to scrutinize the court’s action on the cases, and the justices have responded with near silence.
The inaction comes as Chief Justice John Roberts is working to steer the court away from controversies that have almost crippled the two other branches of government, and liberal interest groups, ever mindful of the court’s newly solidified conservative majority, seek to slow-walk some issues to protect them from adverse rulings.
Progressives are also carefully eyeing Justice Ruth Bader Ginsburg, who is the leader of the court’s liberal wing and is casting her votes by proxy while she recovers from cancer surgery at home.
What the court will do is anyone’s guess.
The justices are clearly moving gingerly, with Roberts, who cares about the integrity of the court more than any other justice, perhaps urging caution at times and maybe trying to limit – if not eliminate – any angry dissents from some of his colleagues.
Roberts’ caution seemed to be on display last month when he voted with the four liberal members of the court to uphold a federal judge’s order blocking the Trump administration’s new asylum restrictions. The order denying the government’s emergency petition was 5-4. Now the issue will go back to the lower courts, and conceivably return to the justices again after lower courts have fully weighed in.
On December 10, Justices Clarence Thomas, Neil Gorsuch and Samuel Alito seemed to call out their colleagues for dodging controversial topics. On that day the court declined to review lower court opinions that said states violate federal law when they terminate Medicaid contracts with Planned Parenthood affiliates who offer preventive care for low income women. Thomas suggested the court should have taken up the case, but shied from doing so to steer away from any kind of perceived link to abortion.
“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote.
The next opportunity for the court to meet behind closed doors will come Friday.
Another factor will be in play by then. Mid-January normally serves as a cut off time for the justices to fill the current calendar. That could mean that if they do agree to grant one of the controversial cases, they may hear the disputes next term, when the political climate could be radically different.
On the docket
Perhaps the most high profile case before the justices concerns the Trump administration’s move to phase out DACA – an Obama era initiative that protects from deportation young undocumented immigrants who came to the United States as children.
Lower courts have so far stymied the government’s attempts to phase out the program, allowing renewals for some 700,000 undocumented immigrants to continue.
The Trump administration has also asked the justices to allow its ban on transgender military service to go into effect. Lower courts have divided on the legality of the ban and the administration says it is necessary to protect national security.
Also in front of the justices is a petition from Indiana asking them to allow an abortion law signed by then-Gov. Mike Pence to go into effect. It has been blocked by lower courts that have ruled that it contradicts Supreme Court precedent. The justices are considering a case concerning the scope of Second Amendment protections, an issue the court has dodged since it came down with a major ruling in 2010. They are also looking at three different cases of keen importance to LGBT rights supporters concerning whether current employment law protects workers from discrimination based on sexual identity and gender identification.
On top of that, they will soon review whether an unnamed company fighting a subpoena related to the Mueller investigation can file a petition with the court under seal.