WASHINGTON – The Supreme Court might prefer to avoid politics, but politics has a way of finding the court.
President Donald Trump wants the court to keep his taxes from being turned over to New York's top prosecutor and allow his administration to exclude non-citizens from the census count. He wants the justices to counteract an order making it easier for women to get abortion pill and rein in voting by mail.
And Trump is hoping to have his third high court nominee, Judge Amy Coney Barrett, installed before Election Day. That would forge a 6-3 conservative majority on a court that for decades has had a 5-4 conservative edge, which liberals could occasionally upend by attracting a vote from across the ideological divide.
“It is difficult for the court to avoid politics. Every issue of course has a very political angle and right now the politicization of the courts puts their decisions front and center,” Princeton University historian Julian Zelizer said in an email. “We are at a turning point moment, on the cusp of the entrenchment of a conservative 6-3 majority that will have huge implications on public policy. So at the most basic level, hard to ignore their connections to the events of the day.”
The court got back to work this week, hearing arguments by telephone over three days. Chief Justice John Roberts began Monday's session by paying tribute to Justice Ruth Bader Ginsburg, who died just over two weeks before the new term began.
But apart from that, it was hard to tell that anything had changed. The tone was upbeat as the eight justices took turns questioning lawyers in cases that did not appear destined to split the court's conservatives and liberals.
The business-as-usual approach is how the justices like it, part of their mantra that the court is above politics and that the public should not view it as just like the other two elected branches of government. That's especially true for Chief Justice John Roberts, the titular leader of the court who rebuked Trump in 2018 for the president's criticism of an “Obama judge.”
But despite their best efforts, the justices are facing a brewing political storm that could peak after Election Day if they are called upon to decide the election's outcome.