Mystery Delays Push Controversial Supreme Court Issues into Election Year

‘The Kavanaugh nomination hearing really put a serious cloud over the court …’

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(Greg Stohr, Bloomberg News) In January the Supreme Court appeared poised to act on President Donald Trump’s bid to end deportation protection for hundreds of thousands of young immigrants.

Then the case disappeared.

Though scheduled to discuss the appeal at their Jan. 18 private conference, the justices haven’t taken any public action since.

The case has become one of the many mysteries in a Supreme Court term that so far is defined less by the issues the justices have decided than by those they’ve deferred.

The court has also put off taking action in cases involving abortion, same-sex wedding cakes and transgender bathroom access.

The delays have kept the court out of the some of the country’s most polarizing issues, at least during the nine-month term that ends in June.

The court now faces the possibility of a massive 2019-20 term, issuing major decisions in the heat of the next presidential election campaign.

The court could announce more cases for next term on Monday.

“It’s pretty obvious that the court is choosing to put off consideration of the most potentially divisive and high-profile subjects,” said Don Verrilli, a lawyer at Munger Tolles & Olson in Washington and formerly President Barack Obama’s solicitor general. “The consequence, of course, is that all of this stuff will come up in an election year.”

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The cautiousness follows — and may stem from — last year’s bruising fight over Justice Brett Kavanaugh, who won Senate confirmation despite allegations he committed sexual assault decades ago.

With Chief Justice John Roberts focused on the court’s institutional legitimacy, he and Kavanaugh both have reasons to avoid polarizing fights in the near term. The two are positioned to determine how quickly the five-justice conservative majority will shift the law to the right.

“The Kavanaugh nomination hearing really put a serious cloud over the court and called into question the chief justice’s common refrain that the Supreme Court is totally divorced from the world of politics,” said Brianne Gorod, chief counsel of the progressive Constitutional Accountability Center. “Any space between that confirmation hearing and these really divisive, politically charged issues may feel meaningful, even if they’re not going to be able to put off hearing them indefinitely.”

The current term’s highlights are cases testing whether courts can strike down voting maps as being too partisan and whether the Trump administration can include a question about citizenship on the 2020 census.

Both are issues the court had little choice but to take up this term. Federal law requires the court to consider appeals in voting rights cases, while the citizenship issue needed a quick resolution so the Census Bureau can print questionnaires this summer.

“The census case is a bit of an outlier because there was a real and legitimate reason why it absolutely had to be decided this term,” said Willy Jay, a Washington appellate lawyer at Goodwin Proctor and former law clerk to the late Justice Antonin Scalia. “For issues that don’t have a built-in deadline, I think it’s fair to say the court is taking its time before adding those cases to its merits docket, if they’re controversial.”

That includes three cases the court will consider in the fall to determine whether federal law bars employers from discriminating against gay and transgender people. The April 22 decision to take the appeals ended months of deliberation, during which two of the cases were on the justices’ conference agenda 15 times, according to the court’s online dockets. Earlier action could have put the cases on the calendar this term.

Deferring action is a routine part of the court’s work when done on a smaller scale. A justice might request more time to study an appeal. Or if the court decides to reject an appeal, someone may take several weeks to write a dissent that aims to persuade colleagues to change their minds.

What’s unusual this term is the frequency of deferrals in high-profile cases. The court has been wrangling since January over an Indiana law that bars abortions motivated by a risk of genetic disorder and requires clinics to bury or cremate fetal remains. That case will be on the agenda for the 13th time when the justices hold their next conference on Thursday.

Likewise, a case involving a bakery fined for refusing to make a cake for a same-sex wedding is making its eighth appearance on a conference list this week. A fight over bathroom access for transgender high school students has appeared nine times.

The deportation case has followed a different path. Trump is seeking to end Obama’s Deferred Action for Childhood Arrivals program for young undocumented immigrants brought to the U.S. as children. Lower courts blocked Trump, saying his administration must give a better justification for abolishing the program.

In contrast to other cases, the deportation appeal hasn’t been re-listed since the Jan. 18 conference. That suggests it’s being held for another case, as often happens when the court is already considering a related issue.

The puzzle is that no other case clearly fits that description, though the census case also involves scrutiny of administrative decision-making. “I have to wonder if the court wasn’t stretching a bit on the hold criteria for the sake of not having that case this term also,” Jay said.

One way or another, the deportation case may be back next term, when the nine justices could find themselves in the middle of election-year politics.

“I’m quite sure that they’re not oblivious to that fact,” Verrilli said. “But they must have made the judgment that it’s better for the court as an institution to have this year be a comparatively tranquil year and face up to these more divisive issues next year.”

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