With important decisions on abortion, affirmative action and immigration looming, the Supreme Court’s two most consistent liberals spoke out this week — about food.
At a Smithsonian event Wednesday night, Justice Ruth Bader Ginsburg issued a sharp dissent to a former colleague’s habit of bringing yogurt — “just plain yogurt” — to the justices’ luncheons. Justice Sonia Sotomayor crossed ideological lines to declare that the leftovers Justice Samuel A. Alito Jr. brings from home always look delicious.
As a strange Supreme Court term profoundly altered by the unexpected death of Justice Antonin Scalia grinds to a close this month, it would be tempting to say that such observations pass for news these days at the Marble Palace.
It is dangerous to predict the court’s future, of course, but all indications point to a muted finale.
Certainly, it seems different from last year’s conclusion, when the court in a series of bold if divided rulings upheld the use of lethal injection, saved the Affordable Care Act (again) and found a constitutional right for same-sex couples to marry.
The talk this term is not of muscle but flexibility.
Chief Justice John G. Roberts Jr. said the ideologically divided eight are spending more time seeking consensus.
“We kind of have to have a commitment as a group,” Roberts told a conference of judges and lawyers last week. “I think we spend a fair amount of time — maybe a little more than others in the past — talking about things, talking them out. It sometimes brings you a bit closer together.”
Undoubtedly true. But in two of the court’s major cases this term, the justices did not coalesce; they punted.
The court said it was deadlocked on the question of whether public employees were deprived of their First Amendment protections by being required to contribute to unions. Conservative groups that brought the challenge have asked the justices to reconsider.
And the court sent a slew of lawsuits challenging the Affordable Care Act’s contraceptive-coverage requirement back to the lower courts.
In a highly unusual move, the justices asked the objectors and the Obama administration to consider a compromise — and then optimistically concluded that, given more time, consensus was possible. The unsigned opinion, and a concurring opinion by Sotomayor and Ginsburg, took pains to point out that the justices had decided nothing about the law.
This week, the court issued one unanimous ruling — it involved peat mining. The justices decided not to decide whether the death penalty might be unconstitutional. The court added one case to next year’s docket, which is both understocked and relatively free of controversy.
Legal experts speculate that the court is reluctant to accept cases. It doesn’t know whether President Obama’s nominee to replace Scalia, U.S. Circuit Court Judge Merrick Garland, will be confirmed, or if oral arguments in the term that begins in October will still be heard by only eight justices.
Whether the court is seriously hampered or simply experiencing a dose of humility is the question of the day.
“As the U.S. Supreme Court enters the last month of its term, the impact of having only eight justices already is clear,” Erwin Chemerinsky, law dean at the University of California at Irvine, wrote in the ABA Journal. “Some of the most high-profile cases of the year are not being decided, or perhaps even worse, are being resolved on narrow grounds that create more confusion than clarity in the law.”
Conservatives say that it is hardly dire if the court has to compromise and decide cases narrowly. And some justices, too, take a broad view. “We may divide 4-4 in four or five cases, we may not,” liberal Justice Stephen G. Breyer said recently.
At this point in the term, decisions still could be up in the air. Justices assigned to write majority opinions are on deadline to begin circulating them, to see whether they attract the needed support.
The justices have heard 24 cases that still need to be decided before breaking camp at the end of the month.
Abortion, affirmative action and Obama’s plan to shield millions of undocumented immigrants from deportation are on that list. So is the fate of former Virginia governor Robert F. McDonnell, who is contesting his conviction on federal corruption charges.
Without Scalia, it is hard to foresee sweeping conservative victories; none of the court’s four liberals showed signs of defection when the important cases were argued.
A deadlock in the abortion case would leave in place restrictions that have closed a majority of clinics in Texas but would not set a national precedent. Likewise, a tie in the immigration case would end Obama’s attempt to carry out the plan but not that of a future Democratic president.
There is no chance of a deadlock in the affirmative action case. Liberal Justice Elena Kagan recused herself from the case examining the long-running saga involving the University of Texas’s use of race in selecting some members of its freshman class, so seven justices will make the decision.
But a four-member majority might be reluctant to stray far from the particulars of the unique Texas system.
Ginsburg has been the lone member of the court to complain about the effects of the Scalia vacancy. She told lawyers and judges recently that the court’s work was being hampered.
“When we meet at the circuit conference next year,” she told a group gathered in New York, “I anticipate reporting on the decisions of a full bench.”