Divided Supreme Court Cautious About Taking New Cases

With a seat vacant possibly until next year, the U.S. Supreme Court is accepting fewer cases and seeking compromises as it tries to avoid being hamstrung by 4-4 deadlocks on such contentious issues.

The Court has shown a reluctance to accept new cases as it faces the prospect of the vacancy created by the Feb. 13 death of Justice Antonin Scalia remaining unfilled for an extended period. It has placed only three new cases on its calendar since Scalia died: a patent dispute and two criminal appeals, none likely to generate much controversy.

In the previous five years, the Court had taken up an average of eight cases during the same period, from late February to early April, with a high of 11 in 2013.

The Court’s current approach suggests the justices, led by Chief Justice John Roberts, have an interest in avoiding the appearance they are crippled by having a vacant seat. That desire also has been signaled in the way the Court has handled cases during the current term, which runs through June.

So far the justices have agreed to hear eight cases in total for the next term, which runs from this October through June 2017. That includes five cases they agreed to hear in January before Scalia died and is slightly below average for this time of year. The court generally hears about 70 cases a term.

“It is beginning to look like the Court is being especially selective in choosing which cases to grant,” said John Elwood, a lawyer at the Vinson & Elkins law firm who practices before the Court.

President Barack Obama last month nominated centrist appellate judge Merrick Garland to replace Scalia. But the seat may remain empty for perhaps a year as Senate Republican leaders insist that Obama’s successor, who will take office next January after the Nov. 8 presidential election, fill the vacancy.

Last Tuesday, the Court took the unusual step of suggesting a possible compromise in a dispute over objections from Christian nonprofit employers to providing insurance covering medications that are required by Obamacare but which the employers oppose on religious grounds.

The justices asked the two sides to suggest ways that the coverage could be provided to employees through these employers’ insurance plans without any involvement on the part of the employers.

The Court could also split 4-4 on a lawsuit by Texas and other states to block Obama’s executive actions to protect large numbers of people in the country illegally from deportation.

With the Court evenly split with four liberals and four conservatives, the slow pace in filling the calendar indicates an increased cautiousness considering the real possibility of 4-4 deadlocks on anything ideologically divisive.

Such decisions leave lower court rulings in place but set no national precedent. The Court has issued two 4-4 decisions so far, including one in a high-profile labor case.

In recent years the Court has not shied away from taking up controversial issues.

It is too early to say if it will now avoid controversial cases altogether, but Scalia’s absence means it may now be restricting itself to disputes in which the justices are “more likely to reach consensus and clarify the law,” said Jeffrey Wall, a lawyer at the Sullivan & Cromwell law firm.