In The New York Times, Supreme Court reporter Adam Liptak details a court "not so much deadlocked as diminished" in the absence of Justice Antonin Scalia. Though not the focus of the article, Liptak also demonstrates the extent to which Scalia pushed the court to take on the really monumental cases, and was the real driver of the Roberts court. He describes the post-Scalia court's work in terms that are rarely applied to the highest court of the land: "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.
You saw that John Roberts showing up, occasionally, in the Scalia years. For example, the Roberts who crafted an Obamacare compromise that left the law intact—declaring the law constitutional—but limited the number of people who would benefit by it—rejecting compulsory Medicaid expansion in all 50 states. But look at this contrast to see just how heavy Scalia's thumb was on the scales of justice—and on Roberts.
Four days before he died, the court blocked the Obama administration's effort to combat global warming by regulating emissions from coal-fired power plants. The vote was 5 to 4, with the court's conservatives in the majority.
Just three weeks later, in a significant victory for the Obama administration, Chief Justice Roberts refused to block a different regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants.
Is that Roberts trying to balance the court's decisions, or is that Roberts no longer bullied by Scalia? We'll never know. We'll also never know how much Scalia's presence decided the work that the court took on, because the court keeps private the votes they take on which cases they accept. But we have a pretty good idea based on the fact that since his death, "the justices have agreed to hear just seven cases, and none of them concern issues of broad public interest. Several involve intellectual property and procedural issues unlikely to produce ideological splits."
A Supreme Court not taking on the big ideological cases in which Scalia always ruled is a good thing for democracy. But a court that avoids taking on the kinds of big cases that are going to be coming down the pike—like voter suppression and egregious anti-abortion laws—is a broken one. Senate Republicans are content to let that impasse continue, knowing that without Scalia these cases will remain unresolved and that's good for them. A court returned to more mainstream ideological balance is the last thing an extremist GOP wants.
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