By Lawrence Hurley
WASHINGTON (Reuters) – Members of the U.S. Supreme Court appeared to be struggling over how to resolve a key case recently when Justice Stephen Breyer suggested that the best course might be to put off a decision altogether.
Breyer’s remark, coming during a March 28 oral argument in a closely watched case involving the redrawing of electoral districts aimed at entrenching one party in power, illustrated the difficulty the nine justices seem to be having in producing rulings at their usual pace.
With five conservatives and four liberals, the court is ideologically divided, meaning common ground may be difficult to find. President Donald Trump’s appointee Neil Gorsuch, who marks his first anniversary as a justice on Tuesday, restored the court’s conservative majority after it was shorthanded and evenly split ideologically for 14 months.
During their current term that began in October and runs through the end of June, the justices must resolve more weighty and difficult cases than usual. One of their biggest cases — deciding the legality of President Donald Trump’s travel ban on several Muslim-majority countries — will not be heard until April 25.
The high court has issued only 18 rulings in cases already argued this term, lagging behind its normal pace. Numerous major cases have yet to be resolved, including one on Wisconsin electoral boundaries heard in October and the similar one heard last month involving the same practice of “partisan gerrymandering” in Maryland that prompted Breyer to suggest the justices rehear the whole matter in the future.
A divisive case pitting gay rights against religious liberty, involving a Christian baker who refused to make a wedding cake for a gay couple, was argued in December.
Other major cases involve fees paid by non-members to unions representing public employees like police officers and teachers, the right of workers to bring class-action claims against employers, the ability of police to obtain cellphone location data to tie criminal suspects to crimes and a California law regulating Christian-based anti-abortion facilities.
Supreme Court experts expect the justices to issue a larger-than-normal number of 5-4 rulings in the coming months. That would increase the chances of conservative Justice Anthony Kennedy, who sometimes sides with the court’s four liberals in major cases, casting the deciding votes.
“It’s reasonable to suggest there are going to be fewer unanimous decisions and more division,” said Nicole Saharsky, a lawyer who often has argued cases before the court.
The court usually takes less time in issuing a ruling when the justices are unanimous. It has issued 11 unanimous rulings and seven with dissenting votes, including three that were 5-4. The court’s most contentious rulings commonly are issued in June.
Part of the slowdown in rulings may be related to the presence of Gorsuch, who has shown signs that he will be a strident conservative voice on the bench. Gorsuch also has exhibited a willingness to question the reasoning of his colleagues, a practice that can delay rulings.
“There could just be new dynamics one way or another,” said John Elwood, who has argued multiple cases before the Supreme Court.
The impasse over partisan gerrymandering was first on display when the court heard arguments on Oct. 3 in a challenge by Democratic voters to Republican-drawn state legislative districts in Wisconsin. Five months later, the justices appeared no closer to resolving the matter when they heard the similar Maryland dispute involving a Democratic-drawn U.S. House of Representatives district.
The court seemed similarly divided in the worker class action case argued on Oct. 2, the first day of the term. The justices will have to decide whether workers can be forced by companies to sign agreements waiving the right to bring class-action claims against their employer.
Based on the Dec. 5 oral argument, Kennedy will also be the deciding vote in the case of whether the Denver-area Christian baker can be penalized under a Colorado anti-discrimination law or whether the U.S. Constitution’s promise of free speech protects him.
The nine justices have not always been at odds with each other, even on contentious matters. There was no dissent when the court in February rejected Trump’s bid to immediately end a program that protects hundreds of thousands of immigrants brought illegally into the United States as children.
The court also showed no divisions when it declined to intervene in another electoral boundaries fight, this time in Pennsylvania.
The slow pace of rulings may in part just be the result of scheduling, said Kannon Shanmugam, another regular Supreme Court lawyer.
“The court has had hard, divisive cases earlier in the term,” he said. “It’s not surprising it might take a while.”
(Reporting by Lawrence Hurley; Editing by Will Dunham)