Supreme Court's recent unity faces
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[June 28, 2017]
By Lawrence Hurley
WASHINGTON (Reuters) - As the U.S. Supreme
Court navigated a difficult period in which it was short one member for
more than a year, justices from across the ideological spectrum often
managed to find common ground. That sense of unity promises to be soon
put to the test.
The nine-justice court ended its 2016-2017 term on Monday with a flurry
of rulings. When it resumes work in October, its recently restored
conservative majority could become more assertive as the justices tackle
big cases on whether the U.S. Constitution lets businesses refuse to
serve gay couples for religious reasons, presidential powers and
manipulating electoral district boundaries for partisan gain.
Neil Gorsuch, Republican President Donald Trump's appointee, joined the
court in April, giving conservatives a 5-4 majority. Gorsuch already has
established himself as among the most conservative and outspoken
justices even before beginning his first full term.
"We will certainly see more cases where they are sharply divided,"
Chicago-Kent College of Law professor Carolyn Shapiro said.
While partisan tensions in Washington have deepened since Trump took
office in January, the Supreme Court largely remained above the fray.
In the 14 months that the court operated with only eight justices
following Justice Antonin Scalia's death and was divided equally between
liberals and conservative, it showed greater unanimity in its decisions
than in recent years. During that time, the justices often sidestepped
major rulings on divisive issues, resolving several cases narrowly and
trying to avoid 4-4 votes that would leave legal questions unresolved.
The court even avoided a sharp ideological split in its decision on
Monday on how to handle Trump's contentious order banning people from
six Muslim majority countries from entering the United States. The four
liberal justices were silent as the court allowed parts of the order to
go into effect and agreed to decide the legality of the policy in its
The court already has agreed to hear several major cases in which the
justices are likely to be divided on ideological lines, including one on
the conflict between gay rights and religious freedom concerning a
Christian baker from Colorado who refused to make a cake for a same-sex
couple, citing his religious beliefs.
The justices will also weigh whether state legislative districts violate
constitutional protections if they are drawn purely to gain partisan
advantage in a case involving a Republican-configured electoral map in
Wisconsin that could have major consequences for U.S. elections.
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U.S. Chief Justice John Roberts (seated C) leads Justice Ruth Bader
Ginsburg (front row, L-R), Justice Anthony Kennedy, Justice Clarence
Thomas, Justice Stephen Breyer, Justice Elena Kagan (back row, L-R),
Justice Samuel Alito, Justice Sonia Sotomayor, and Associate Justice
Neil Gorsuch in taking a new family photo including Gorsuch, their
most recent addition, at the Supreme Court building in Washington,
D.C., U.S., June 1, 2017. REUTERS/Jonathan Ernst
The travel ban case, Trump's first big Supreme Court battle, is a
major test of presidential powers, with Trump's administration
arguing that the judiciary should show deference to the president on
national security matters.
In the term that just ended, the court was able to decide all but
two of the cases it heard. On Monday, the justices ordered that
those cases, both on immigration-related issues, be re-argued in its
next term, when Gorsuch would be able to participate. The action
suggests the court was divided 4-4 along ideological grounds on
A review of rulings from the 2016-2017 term compared with previous
years shows a higher rate of unanimity, likely prompted by the
greater need for compromise without a decisive ninth vote.
In 69 cases in which the court issued decisions on the merits, there
were no dissenting votes in 41 of them, or 59 percent, according to
Kedar Bhatia, who compiles court statistics for the SCOTUSblog
website. That compares with 44 percent in the court's previous term
and 40 percent in the one prior to that.
"With only eight members, I think the court was trying harder to
achieve as much agreement as possible, both in the close cases and
in the not-so-close ones," said Kannon Shanmugam, a lawyer who
regularly argues before the court.
While they were shorthanded, the justices took up fewer cases that
were likely to divide them ideologically. For example, they took six
cases on patent protections, a higher-than-normal number, on an
issue in which they usually are unanimous.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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