Over the next several weeks, I’ll be sharing my thoughts on some of the major cases from this past Supreme Court term. Plus, I’ll be sharing my thoughts on OT 2017–which is shaping up to be one of the most consequential terms in recent memory. This first post provides my 20,000 foot view of this past year.
First, it appears that consensus was the name of the game because the Court was operating with eight Justices for most of the term. Justice Alito noted that because the Court had eight Justices for most of the term, that the Justices had more discussions, compromises, and narrow decisions than they otherwise would. In previous years, the Court’s final day was marked with hot-button issues: abortion, gay marriage, contraception mandates, and Obamacare. But yesterday, OT 2016 fizzled to an end. Trinity Lutheran v. Comer was the “major” case of the term. Yet that case ended up being fairly uncontroversial, with the Court siding 7-2 in favor of the church.
The biggest news of the year was the addition of Justice Neil Gorsuch. After a contentious confirmation fight, in which Senate Republicans utilized the “nuclear option” to overcome Senate Democrats’ filibuster. Republican Leader Mitch McConnell took a huge gamble by refusing to hold hearings for Judge Merrick Garland, a 63 year-old “moderate” liberal. If Hillary Clinton had won the 2016 election, which appeared all but inevitable in early October, then she could have nominated an even more liberal and younger Justice–one that would serve on the Court for decades.
But Senator McConnell’s gamble paid off when Donald Trump won the Presidency. And his reward was Justice Gorsuch. In the infancy of Justice Gorsuch’s tenure, he appears to be a true textualist and originalist. He appears to be someone that would make Justice Scalia proud.
Although this term was not the most exciting in history, there were a few notable cases. As mentioned, the Court strengthened the Free Exercise Clause. It cemented its strong position in favor of free speech. The Court even narrowed the rights of litigants seeking to intervene in a lawsuit! But the Court did get it wrong in a major property rights case. I’ll have more to say about these cases in the coming weeks.
Suffice it to say, this term was pretty slow. But the Court did address some novel issues while welcoming a new Justice to the bench.