by Dan Froomkin
The Supreme Court term that ended last week was fairly tame – at least by recent standards. But top Court observers on an American Constitution Society panel on Thursday said that beneath the collegiality and calm were signs of major fissures likely to deepen and become more acrimonious when the Court reconvenes in October.
And nothing may have made that more clear than the Court's parting decision, crafting a compromise of sorts that lifted a stay on major parts of President Trump's hugely controversial travel ban.
"It is muscular. It is the court drawing its own line – not based in statute, not based in executive order -- about how this semi-stay is going to be accomplished," said Lee Rowland, senior staff attorney for the ACLU's Speech, Privacy, and Technology Project. "I think that's an indicator that the Court is willing to wade in to some serious controversy, including making foreign policy itself."
Paul Clement, a former solicitor general now at Kirkland & Ellis LLP, said the Court's travel ban decision was "a good way to think about the transition from this last term, which was kind of sleepy, and they decided a lot of things with eight justices, and didn't make any waves" to "a term full of blockbusters."
And there's no question that Trump's addition to the Court, Justice Neil Gorsuch, will be a key element in that transformation.
For now, said Tom Goldstein, the co-founder and publisher of SCOTUSblog, "I think that one of the things that's going on is what we call the left on the Court is trying to be relatively tactical and trying to accommodate what they think is the inevitable pivot of the Court still further to the right… and trying to build some sort of consensus."