America’s nasty, brutish and not-so-short 2016 presidential campaign raised some painful issues about the nation’s democratic institutions and the treatment of people involved in them. Charges were made about voter fraud, “rigged” elections and whether people’s ethnic or racial background makes them more likely to commit crimes. It was the sort of ugly dialogue justices on the US Supreme Court can typically experience as interested observers, separated from the politics and immune from the fallout. But this year, a high court already hit with the collateral damage of legislative-executive branch politics may well be dealing with the aftermath of a painful election season. Voting rights, redistricting and the fairness of the criminal justice system to racial and ethnic minorities are all topics likely to reach the high court, adding a judiciary sequel to the tense debates of the 2016 campaign season. “It’s going to go on forever, apparently,” quips David Coale, a partner at Dallas-based Lynn Pinker Cox Hurst who has been monitoring critical cases rooted in the Lone Star State.
The high court already went through its own politics-related drama in 2016, hampered by the absence of a ninth justice after the death of Antonin Scalia in February. With the Senate refusing to confirm a new justice before the election, the Supreme Court was left without a tie-breaking vote. While Justice Stephen Breyer noted on MSNBC’s “Morning Joe” that half of all cases are decided unanimously, there were cases in which the divided court was a factor. In United States v Texas, a 4-4 tie left standing, without precedent-setting authority, a lower court ruling striking down President Barack Obama’s executive order shielding some 5 million undocumented immigrants from deportation and allowing them to work. Another case, Zubik v Burwell, the high court by an 8-0 vote ordered the parties to find a compromise over how religiously-affiliated businesses handle the contraception coverage provision of the Affordable Care Act. Observers believe the order was a compromise among jurists who wanted to avoid a 4-4 tie on such a politically potent issue.
Further, the court in 2016 appeared to be filling its docket at a slower pace – likely, says American University Washington School of Law professor Stephen Wermeil, because they knew certain cases would not get a majority vote.
The Supreme Court famously got dragged into electoral politics in 2000, when its decision in Bush v Gore delivered the presidency to George W. Bush after a disputed vote count in Florida. And in the coming year, the high court may be asked to decide election-related matters that go far beyond a single campaign for president. “For me, the big imprint is democracy, and the laws of democracy,” says Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.