Divided Supreme Court Lurches to Term’s End

Wall Street Journal

By Jess Bravin

June 19, 2016

Divided Supreme Court Lurches to Term’s End 

The Supreme Court’s current term, once expected to be a banner year for conservatives, is hobbling toward its end amid an ideological stalemate left by the death of Justice Antonin Scalia. And the court’s recent actions suggest the next term, beginning in October, could contain its shortest, least-consequential docket in recent memory.

With the justices ideologically split 4-4, and Senate Republicans declining to consider President Barack Obama’s nominee Merrick Garland to fill the opening, the court this term has tied or decided several major cases on narrow grounds, leaving legal disputes undecided. Though it has a handful of potential blockbuster cases to decide in June—on abortion, affirmative action and Mr. Obama’s immigration policy—it is possible some of those outcomes may also be narrow.

The court also apparently sees little purpose in taking cases for the next term that might also deadlock, with little chance the Senate might approve a new justice before 2017. As a result, petitions that might have seemed strong candidates for hearing are being turned down.

“On issues where Scalia’s vote made it likely or possible to get a five-justice conservative majority, now the best they can hope for is 4-4, so why bother,” said Cornell University law professor Michael Dorf.

While the court has been skipping tough, ideologically tinged cases, “a big piece of its job is just housekeeping, resolving circuit splits” over ambiguous terms in the federal code, Mr. Dorf said. “And they can do that with eight justices.”

As of Tuesday, 13 of 82 cases argued this term remained to be decided. Conservatives could get at least partial wins in the abortion, affirmative action and immigration cases—all involving Texas—but the odds of any producing a landmark precedent have diminished.

If the two blocs divide evenly in the abortion and immigration cases, conservative rulings from the Fifth U.S. Circuit Court of Appeals will remain in force, but no national precedent would be set.

The Fifth Circuit, in New Orleans, upheld Texas regulations on abortion clinics requiring them to meet the stringent standards of ambulatory surgery facilities and mandating that doctors performing the procedure maintain admitting privileges at a local hospital.

While a 4-4 split would leave the Texas law valid—and implicitly approve similar laws in the two other states under Fifth Circuit jurisdiction, Louisiana and Mississippi—it would have no effect on the remaining 47 states, leaving the scope of permissible abortion regulations unclear.

A tie vote on the immigration case would kill President Obama’s hopes of implementing his plan to defer deportation for millions of illegal immigrants. But likewise it would establish no Supreme Court precedent, effectively leaving its future validity in the hands of the president and Congress that take office in January.

The affirmative-action case is different in part because Justice Elena Kagan, who worked on the case as an Obama administration official, recused herself from the case, leaving only three liberals casting votes. If the court’s conservatives remain cohesive, they could craft a landmark ruling further limit racial preferences in public university admissions.

Now it is clear that the court’s diminution will continue well into its next term beginning in October, if not longer.

The eight-member court has been accepting fewer cases than typical for review, and those it has taken largely concern technical matters rather than the pivotal questions the political system has been unable to resolve.

For the next term, the court has been accepting cases at its slowest rate in years, and might not fill all its argument slots if it doesn’t pick up the pace. At present, it has accepted enough cases to fill 16 hours of argument next term, down from 21 as of mid-June last year and 24 the year before. The court typically hears about 80 hours of argument each year, with most cases getting one hour and a handful of big cases getting one and a half or two hours.

To be sure, the justices will have more opportunities this month to boost next term’s docket before they leave for summer break and potentially could add cases on issues including religious rights, immigrant detentions and bank loans.

​Supreme Court litigator Jeffrey Wall said the court would likely focus on such areas as patent and copyright law, which are important to the economy but don’t trigger sharp divisions among the justices. “We all have a sense that some of these more controversial [cases], they don’t want to grant. That’s why I think the I.P. [intellectual property] space will be very big” next term, he said at a U.S. Chamber of Commerce briefing Friday.

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