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Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End

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·6 min read
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(Bloomberg) -- Amid signs of internal discord, the US Supreme Court is waiting until the bitter end to do the largest share of its work in more than 70 years.

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The court is due to issue 33 opinions, a whopping 53% of its expected total in argued cases, as its 2021-22 term comes to an end in the next month. Among those will be rulings that could effectively render abortion illegal in two dozen states and mean more handguns on the streets.

The historic backlog -- the biggest in percentage terms since at least 1950, according to empiricalscotus.com founder Adam Feldman -- comes as the justices and their law clerks deal with an investigation into the leak of a draft opinion overturning the Roe v. Wade abortion-rights ruling. All told, it’s a formula for what could be a momentous and rancorous final month.

“June is invariably a hectic and contentious time at the court,” said Greg Garre, a Washington appellate lawyer who served as solicitor general under then-President George W. Bush. “And in that sense, this June will be no different. But the storm clouds obviously look more severe in terms of what could lie ahead.”

In addition to abortion and guns, the justices are scheduled to decide whether to restrict the Environmental Protection Agency’s power to tackle climate change, whether to force President Joe Biden’s administration to keep a Trump-era asylum policy and whether to give public-school teachers and staff more freedom to pray openly on campus.

Arguments earlier in the term suggested Republicans will reap the dividends from filling three vacancies during Donald Trump’s presidency, giving the court a 6-3 conservative majority. In their first full term together, the three Trump appointees -- Justice Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett -- have signaled a readiness to fulfill top items on conservative wish lists.

The strains fueled by that ideological shift have seeped out into the public. During arguments in the abortion case last year, liberal Justice Sonia Sotomayor asked whether the court would “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts.”

More recently, conservative Justice Clarence Thomas said the opinion leak deeply damaged the institution, undermining trust among the justices. And he compared the current membership unfavorably to the “fabulous court” during the late 1990s and early 2000s.

Along the way, two potential bridge-builders, Justices Kavanaugh and Elena Kagan, have sniped at one another over the court’s handling of its stream of emergency requests, dubbed the “shadow docket” by critics.

‘Extremely Fractious’

All that antagonism may explain why the term is so backloaded. In a highly unusual move, the court isn’t issuing opinions this week, suggesting the strife might be delaying even low-stakes cases.

The discord “just feels like it’s off the charts,” said Leah Litman, a University of Michigan law professor and former law clerk to since-retired Justice Anthony Kennedy. “It just seems like an extremely fractious time.”

The abortion ruling could fulfill a decades-old conservative dream. A draft majority opinion published last month by Politico would overturn Roe, the 1973 ruling that established abortion as a constitutional right. That followed an argument in which all three Trump appointees expressed interest in overturning Roe.

“After almost 50 years, we really could see a major sea change in the country,” said Carol Tobias, president of the National Right to Life Committee.

The lingering question is whether Chief Justice John Roberts can persuade one of his conservative colleagues to join him in a narrower opinion, perhaps upholding Mississippi’s ban on abortion after 15 weeks of pregnancy without entirely overturning Roe.

“I wasn’t optimistic after the argument, and I’m not particularly optimistic on seeing the draft opinion and what followed,” said Litman, an abortion-rights supporter.

Polls show that more Americans favor abortion rights. A new Wall Street Journal-NORC survey taken after the leaked draft opinion found 68% of respondents don’t want to see Roe overturned, while 30% support that move. A new Gallup poll found 58% opposed to reversing Roe, with a near-record 55% identifying as “pro choice,” the highest figure since 1995.

Should the court overturn Roe, 26 states either will or are likely to ban almost all abortions, according to the Guttmacher Institute, a research organization that backs abortion rights.

Handgun Clash

The gun case was already set to be the biggest Second Amendment ruling in more than a decade before mass shootings in Buffalo, New York, and Uvalde, Texas, turned firearm access into a front-burner national issue.

During arguments in November, the justices suggested they will rule that most people have a constitutional right to carry a handgun outside the home and will strike down a New York law requiring a special justification to get a concealed-carry permit.

New York is one of eight states -- along with California, Massachusetts, New Jersey, Maryland, Rhode Island, Delaware and Hawaii -- with laws that the National Rifle Association says prevent most people from legally carrying a handgun in public.

The EPA case could undercut Biden’s pledge to reduce US greenhouse-gas emissions in half by the end of decade. Coal companies and Republican-led states are asking the court to pre-emptively stop the EPA from issuing the type of sweeping emissions rules President Barack Obama tried to put in place.

Under Obama’s Clean Power Plan, states were encouraged to shift electricity generation away from coal-fired plants to lower-emitting sources. The power industry is backing the Biden administration, as are environmental advocates.

An especially broad ruling could reach beyond the EPA and keep other federal agencies from issuing major regulations without explicit authorization from Congress.

And the court will add new cases for its nine-month term that starts in October, a session that already includes major clashes over university affirmative action, anti-gay discrimination and race-based voting maps. Among the potential new cases are Bayer AG’s bid to stop billions of dollars of claims that its Roundup weedkiller causes cancer.

“We’re on the verge of a dramatic change in so many areas of constitutional law,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

He likened this era to the ideological shift the court underwent in 1937 after then-President Franklin Delano Roosevelt tried to “pack” the court with additional justices in response to opinions stifling his agenda.

“I think that this is going to be comparable to that,” Chemerinsky said.

(Updates with Gallup poll in 16th paragraph.)

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