The Supreme Court moved gingerly on Tuesday, seeking to at least postpone some hot button issues like the future of DACA, LGBT employment rights and abortion restrictions for now in order to keep the third branch of government as far away from the controversies currently embroiling the political branches as possible.
But the newly solidified conservative majority, moved boldly in other areas, signaling the impact of the vote of Justice Brett Kavanaugh.
For the first time since 2010, the court agreed to hear a major Second Amendment case –something it had repeatedly declined to do before Kavanaugh took the bench. That case will be heard next term.
In addition, over the objection of the four liberal members of the court, the justices agreed to allow the administration’s ban on most transgender individuals from serving in the military to go into effect while the issue plays out in the lower court.
And Justice Samuel Alito, joined by Clarence Thomas, Neil Gorsuch and Brett Kavanaugh signaled that they were troubled by an opinion written by the 9th US Circuit Court of Appeals that went against a high school football coach who was suspended in part because he knelt at the 50 yard line at the end of games and said a private prayer.
Although for procedural reasons they thought the court was right to decline to take up the particular case, the conservatives said they thought the lower court’s language was “troubling.”
“What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty,” Alito wrote.
Chief Justice John Roberts – who cares about the institution of the court perhaps more than any other justice – has made it his mission to protect the integrity of the Court in spite of attacks from President Donald Trump. While it takes four justices to agree to hear a case, one justice can vote to have it moved to a future conference.
In the case of DACA, for instance, the court’s inaction virtually guarantees that the Obama-era program will remain in effect for the next several months protecting some 700,000 immigrants currently enrolled in the program.
But supporters of LGBT rights were dismayed at the court’s actions. While the justices denied a request to hear the Trump administration’s appeal to lower courts that have blocked his ban on most transgender individuals serving in the military, the justices did allow the policy to go into effect for now while the issue plays out below.
Peter Renn, a lawyer for Lambda Legal, said in a statement that the court’s move means now the “rug has been ripped out from under them.”
“Although it’s easy to understand why the Court wants to keep its head down with regard to so many of these high-profile, headline-generating, socially divisive cases, there could be an unintentional irony in moving so slowly,” said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.
“If all that happens is that these disputes get pushed into the Court’s next Term, that would mean decisions in those cases would be expected in mid-2020 – right in the middle of the next election cycle,” he said.