- Supreme Court to begin new term short-handed as its ideological balance hinges on fall vote.
The Supreme Court’s new term begins Monday with the focus not on the court’s docket but on the court itself and a future that will be defined by the presidential election.
For the first time in decades, there will be only eight justices, not nine, to begin the new term. Also absent are the kind of big-ticket cases — involving immigration reform, affirmative action, abortion, same-sex marriage and the Affordable Care Act — that in recent years have catapulted the Supreme Court to the fore of American civic life.
Instead, the short-handed court has assembled a docket of more-modest cases — albeit ones that touch on contemporary controversies such as the role of race in criminal justice and politics, free speech and perhaps the treatment of transgender students.
- With one seat vacant, the Supreme Court returns.
Although the court has chosen, as of now, three dozen cases for decision during the new term, not one of those cases rises to the level of some of the major controversies that have been before it in recent terms – like the question of same-sex marriage, the fate of the broad new national health care law, attempts by state legislatures to restrict abortion rights, and, of course, the Obama immigration policy.
Perhaps the one case already scheduled for review that seems most likely to produce a deep division among the Justices – the right of religious schools to share equally in state-operated benefit programs – has been kept on hold without a hearing set for it, presumably because the court has been hoping that it would have a ninth Justice to join in deciding that case and thus avoiding a split. Issues of religious freedom have deeply divided this court, and that case stands right in the middle of that controversy.
The one area of brand-new controversy that could come before the court in the new term is the still-developing campaign to secure equal rights for transgender people. Already pending at the court is the first test case on that question, involving a high school senior in Virginia who is a transgender boy who wants to use the boy’s restroom at school. By a vote of 5-to-3, the court during the summer temporarily barred him from doing so, and it is a serious question whether the court will now be willing to step in and make a final decision on his claim of equal treatment at school.
“This term promises to be the most unpredictable one in many, many years,” saidNeal K. Katyal, a former acting United States solicitor general in the Obama administration now with Hogan Lovells.
There is no case yet on the docket that rivals the blockbusters of recent terms addressing health care, abortion or same-sex marriage. But such cases are rare, whether there are eight justices or nine.
“This term’s cases are not snoozers,” said Elizabeth B. Wydra, the president of the Constitutional Accountability Center, a liberal group. “This term features important cases about racial bias in the criminal justice system, voting rights and redistricting, immigration and detention, and accountability for big banks that engaged in racially discriminatory mortgage lending practices.”
There are, moreover, major cases on the horizon, including ones on whether a transgender boy may use the boys’ restroom in a Virginia high school and on whether a Colorado baker may refuse to serve a same-sex couple.
“If either of these cases is taken, it will almost immediately become the highest profile case on the court’s docket,” said Steven Shapiro, the legal director of the American Civil Liberties Union.
There is also the possibility that a dispute over the outcome of the presidential election could end up at the Supreme Court, as it did in 2000 in Bush v. Gore.
“That is the doomsday scenario in some respects of having an eight-member court,” said Carter G. Phillips, a lawyer with Sidley Austin. A deadlocked Supreme Court would leave in place the lower court ruling and oust the justices from their role as the final arbiters of federal law.
