June marks the beginning of the final stretch of the most politically fraught term of the U.S. Supreme Court in recent years.
The justices’ work is usually low on the public’s radar throughout most of a term, but when June arrives, decisions in the most difficult and high-profile cases thrust the court into the public eye. That happened Monday, when the court ruled in favor of a Colorado baker who refused to make a wedding cake for a gay couple.
This term feels more politically fraught than recent ones for two reasons: the extreme partisanship dominating the relationships between the executive and legislative branches, and the nature of the remaining cases to be decided.
In a 2011 interview, Justice Ruth Bader Ginsburg said, “What I care most about, and I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”
What Justice Ginsburg undoubtedly voiced was her hope that the court would not be considered a partisan institution as the other two branches are.
But the task is made harder because of the ideological divide on the Roberts Court: five conservative justices appointed by Republican presidents, and four liberal justices appointed by Democratic presidents. When they divide 5-4, the outcome appears more political than ideological.
Past terms have revealed what appears to be a core group of justices who strive harder than the others to find common ground in the most divisive cases. They include Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer and Elena Kagan.
Their challenge is particularly difficult—and may well fail—in the following, still-undecided cases, which threaten to draw the institution into the current political thicket.
- A pending case involving a culture war issue that continues to divide much of the nation. Can California require anti-abortion crisis-pregnancy centers to post certain information about their services and staffs, as well as low-cost services offered by state programs? How will the justices’ views of the First Amendment reconcile the competing interests at stake? (The court also weighed in on another controversial social issue in its ruling Monday siding with the Colorado baker. The case had sparked a debate about discrimination and religious freedom, and the 7-2 decision was a blow to gay rights advocates).
- The partisan gerrymander cases from Wisconsin and Maryland have by their very nature partisanship as the core issue. When does partisanship so infect the redistricting process that the resulting map violates the Constitution? The Wisconsin case is a Democratic challenge to a Republican-drawn map; the Maryland case is a Republican challenge to a Democratic-drawn map. During arguments in the Wisconsin case, Roberts voiced the institutional concern with those cases. He noted that if the court recognizes those gerrymander claims, more cases inevitably will follow. “We will have to decide in every case whether the Democrats win or the Republicans win,” he said. The “intelligent man on the street” is likely to believe that the outcome of those cases was determined by the court’s preference for one political party over the other, regardless of the court’s rationale, Roberst said, adding, “and that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
- The justices’ recent 5-4 decision allowing employers to ban class or collective actions in workplace arbitration agreements fed long-standing criticism in some quarters that the Roberts Court is a “pro-corporate” or anti-worker court. They risk that label anew in the case asking them to overturn a 41-year-old decision upholding “fair share” fees paid by non-union workers to public employee unions that represent all workers in collective bargaining.
- And finally, and perhaps more politically fraught than the others, is the challenge to President Donald Trump’s “travel ban,” barring foreign nationals of certain predominantly Muslim countries from entering the United States. Should Trump lose—regardless of the court’s reasoning in this complex case—the court undoubtedly will be in the cross-hairs of the president and his supporters.
Former NewsHour correspondent Margaret Warner moderated a conversation with retired Justice David Souter in New Hampshire a number of years ago. The justice was asked: how does the public judge the justices? The public, replied Souter, has to read the court’s decisions.
“A principled decision is one in which the Court candidly and convincingly explains why this principle prevailed over that principle,” he said. “It is the choice of principles that is the tough part. The public judgment has got to be a judgment on whether they believe what the Court says, whether they believe what the Court says, is convincing in making that choice between principles.”
In this age of instant news and analyses that seem to come at us from every direction, Souter’s prescription may be too difficult to fill in our busy lives. But ultimately it is our own challenge in the next four weeks as this very consequential term comes to an end.