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The Supreme Court began its mandate with the tumultuous confirmation of Judge Brett Kavanaugh. It was followed by a studied avoidance of the drama on the seat of the Supreme Court – in particular of all that would divide the five conservatives and the four liberals.
Judges have been unusually solicited from each other in the courtroom since Kavanaugh's confirmation, and several have expressed concern that the public perceives the court as a mere political institution . Chief Justice John Roberts seems determined to lead the only institution in Washington that remains above the political fray. Even Roberts' reprimand of President Trump, after the president criticized a federal judge, defended an independent, apolitical judiciary.
The next few weeks will determine if calm can last.
When they meet in camera on January 4, the judges will be confronted with a series of high-profile calls to consider new cases for arguments in April and the next term.
Abortion restrictions, workplace discrimination against LGBT people and partisan gerrymandering are on the agenda. The Trump administration is lagging behind calls for the court to allow it to end an Obama-era program that protects young immigrants from expulsion and puts in place rules restrictive for transgender troops.
There are Already Signs That Conservative Judges In addition to Roberts, they are willing to deal with controversial cases that could generate the ideological and partisan divisions that their colleagues seem to want to avoid.
In recent weeks, three Conservative judges have accused the court of failing to do its best. particularly where the lower courts have opposed the result. Their critique, written by Judge Clarence Thomas and in which Judges Samuel Alito and Neil Gorsuch participated, was taken following a recent decision to avoid a Planned Parenthood funding case.
Then, on Friday before Christmas, the court split 5-4. by refusing to allow the Trump administration to apply new restrictions to asylum seekers. Roberts joined the four Liberals. The three Conservatives who were unhappy with the outcome of the family planning case again noted their disagreement, this time with Kavanaugh.
The two votes can not be used to draw definitive conclusions about what could happen in camera in camera. as the cases arrived under different circumstances. In the Planned Parenthood case, the judges were considering the possibility of granting a full review, a process that only takes four votes. The asylum case was an urgent call from the administration. At least five of the nine judges should have voted in favor of the administration.
But Lawrence Solum, a professor of constitutional law at the Georgetown University School of Law, said Roberts appeared to have two reasons to limit the court's involvement in the case of pimples: his preference for the law and its concern for the reputation of the court.
"It is clear that decisions 5 to 4 will be seen by many lawyers, by many politicians and by the general public as ideological decisions," said Solum. "So, given Roberts' desire to preserve the legitimacy of the court, he could be very motivated to avoid such decisions in the next period of his history, whether for a year, two years or five years, who knows? ? "
The Court arrived at this point after a series of unusual events that began with the death of Judge Antonin Scalia in February 2016. Senate Republicans refused to act on the appointment by the President Barack Obama of Merrick Garland . allow Mr. Trump to bring Gorsuch to court in 2017. To date, Democrats say the seat has been stolen from them.
Then, during the summer, the retirement of Justice Anthony Kennedy meant that Mr. Trump could also replace the President. vote court swing with a more reliable conservative. Kavanaugh's antecedents as an appeal judge suggested that he was indeed this man, but the charges of sexual assault, almost denied by him, denied his confirmation.
The charges against Kavanaugh turned the confirmation process into a national show that culminated in a hearing Kavanaugh and Christine Blasey Ford, who charged her with assault while they were in high school . Republicans said the allegation was not proven and confirmed Kavanaugh at a rare Saturday session. Highlighting how moving the debate was, a crowd of protesters gathered in front of the Supreme Court building after the Kavanaugh vote, some climbing on the stone statues lining the steps.
One of the results of the Kavanaugh's turmoil has been the most serious discussion to date Decades of limitation of the court's powers, including the potential increase in the number of judges, said solum. "This suggests that the legitimacy of the court is involved now, perhaps in a way that has not been until recently."
Roberts is not only the chief justice, but he has essentially taken Kennedy's place as an alternative vote – conservative justice near the center of the court. The Supreme Court will only go as far as Roberts is willing to go both ways.
He may try to keep the court completely out of touch with some cases, although it requires being able to persuade at least one other conservative justice to follow his example. . That's what happened in the family planning case, when Kavanaugh voted to refuse the review. "The difficult battle of confirmation can lead to a bit of caution," said John McGinnis, a law professor at Northwestern University.
When judges get into a controversy, Roberts may "write or insist that decisions be made narrowly.", Stated McGinnis.
Roberts has been Chief Justice for over 13 years, but he is only 63 years old and could run the court for another two decades or more.This allows Roberts, who began his legal career as an attorney within the Reagan administration, to d & rsquo; take a long-term view and wait for the moment when political tensions and concerns about the reputation of the court will diminish.
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