WASHINGTON — The Supreme Court has gone into hibernation, withdrawing from the central role it has played in American life throughout Chief Justice John G. Roberts Jr.’s decade on the court.
The court had leaned right until the death of Justice Antonin Scalia in February. According to the conventional wisdom, the court is now evenly divided and large numbers of 4-to-4 ties are inevitable. But the truth is more complicated. The court is not deadlocked so much as diminished.
The justices will continue to issue decisions in most cases, but many will be modest and ephemeral, like Monday’s opinion returning a major case on access to contraception to the lower courts for further consideration.
“We’re seeing an even greater push for broad consensus and minimalist rulings, and a majority of the court seems willing to go along with that approach,” said Jonathan H. Adler, a law professor at Case Western Reserve University.
Opinions vary about whether a Supreme Court that does little is good for the nation, but the trend is certainly a testament to Chief Justice Roberts’s leadership. He has long said he favors narrow decisions endorsed by large majorities, and it turns out that goal is easier to achieve on an eight-member court.
In public remarks in April, Justice Elena Kagan described a court that is now “especially concerned” about finding ways to achieve consensus. “All of us are working hard to reach agreement,” she said.
“I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” she added. “He’s conveyed that in both his words and his deeds.”
Republican senators have vowed not to confirm President Obama’s Supreme Court nominee, Judge Merrick B. Garland, saying the choice of a replacement for Justice Scalia should go to the next president. That would leave the court short-handed for many more months.
In the meantime, the eight-member Roberts court is in important ways dominated by the court’s four-member liberal wing, which can now block efforts to move the law to the right.
[L]ast Thursday, a deadlocked court refused to vacate a stay of execution of an Alabama man, Vernon Madison, with the court’s four conservatives saying they would have let the execution proceed. Had Justice Scalia lived, Mr. Madison would almost certainly have died.
The court has three major decisions left to decide before the justices take their summer break: on abortion, immigration and affirmative action.
Source: The New York Times, Adam Liptak, May 17, 2016