The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).