ON OCTOBER 1st, for the second time in three terms, the Supreme Court will begin its term a justice short. In 2016, with Senate Republicans stonewalling Barack Obama’s choice to succeed Antonin Scalia, the justices plodded along as a court of eight until Neil Gorsuch took his seat in April 2017. This autumn the court will not remain shorthanded for nearly as long. Allegations of sexual assault have spurred a political firestorm over Brett Kavanaugh, President Donald Trump’s second nominee. But with Republicans commanding a 51-to-49 majority in the Senate until at least January, the Supreme Court will probably return to full strength—with a solidly conservative five-justice majority—within days or weeks. The only question is whether the person filling Justice Anthony Kennedy’s seat will be his former clerk (Mr Kavanaugh) or somebody else.
The 38 cases awaiting the justices (with more on the way) may not grab headlines quite like last term’s tiffs over gay-wedding cakes, gerrymandering and Mr Trump’s Muslim travel ban. But important questions loom. In their first week back the justices will hear arguments on the fate of an endangered amphibian, the separation of powers and whether a man with a mental illness can be executed.
Weyerhaeuser v United States Fish and Wildlife Service, the opening argument of the term, pits logging companies against the three-inch-long creature, the dusky gopher frog. With fewer than 200 believed to be still hopping in America, the amphibian is listed as one of the 100 most endangered species in the world. Habitats for the dusky gopher frog are in short supply. They breed in fishless “ephemeral ponds” that dry up in the summer. Other than a single pond in Mississippi, only one area in Louisiana seems suited to the frog. But the owners of those 1,544 acres include two timber companies. The justices will consider whether the Endangered Species Act authorises the federal government to preserve these tracts for the dusky gopher, costing the companies $34m over 20 years.
Another case probing the limits of executive power, Gundy v United States, will be heard on October 2nd. Gundy asks whether an ambiguity in the Sex Offender Registration and Notification Act (SORNA) falls foul of the “non-delegation doctrine”, an old, seldom-enforced rule that one branch of government may not hand over its constitutionally prescribed duties to another. When Congress drafted SORNA in 2006, lawmakers remained mum on whether the requirements apply to people convicted of sex offences before the law was passed; the attorney-general, SORNA provided, can sort that out.
Based on previous rulings and a left-right coalition of amicus briefs, there may be interest on both ends of the Supreme Court’s ideological spectrum for policing abdication of the legislative role to the executive branch. And the implications may reach beyond sex offenders. Tom Goldstein, a frequent Supreme Court litigator, points out that a judgment reviving the non-delegation doctrine may cast doubt on the feeble legislative hook presidents often cite when imposing tariffs, purportedly to protect America from threats to its national security. Mr Trump’s aggressive trade policy, grounded in this pretence, may eventually face resistance.
The first of two death-penalty cases this term will also be heard on October 2nd. Madison v Alabama asks whether executing a prisoner whose dementia has erased all memory of the murder he committed in 1985 violates the Eighth Amendment’s ban on cruel and unusual punishment. Another case coming up later in the term, Bucklew v Precythe, considers the same constitutional standard in light of Russell Bucklew’s claim that his rare medical condition, cavernous hemangioma, could make lethal injection monstrously painful. Mr Bucklew says he would prefer to die in a Missouri gas chamber, where his “unstable, blood-filled tumours” would not be at risk of rupturing and choking him.
Capital punishment typically fractures the Supreme Court along ideological lines. A few other cases in the pipeline may do so too, if the justices opt to take them up. One petition asks whether Title VII of the Civil Rights Act, which bars gender discrimination, should be read to prohibit discrimination based on sexual orientation. Another involves a 40-foot-high cross in Maryland that has stood as a first-world-war memorial on public land for 90 years; plaintiffs say the cross violates America’s separation of church and state. The most contentious matter the justices are likely to confront this term is whether Mr Trump acted legally when, a year ago, he rescinded DACA, Mr Obama’s executive action of 2012 shielding undocumented immigrants who arrived in America as children.
Two other cases look juicy. One asks if federal and state prosecution for the same crime could be a violation of the double- jeopardy clause; this has implications for Paul Manafort, Mr Trump’s convicted former campaign chairman. The other involves a rule that owners of land containing old cemeteries must provide public access.
Relatively few cases slated for argument this term seem likely to produce 4-4—or, once the ninth justice arrives, 5-4—splits. This is by design. In the wake of Justice Kennedy’s departure, a sordid confirmation battle and a term that saw losses for public-sector unions alongside wins for a gay-wedding-averse Christian baker, gerrymanderers and pro-life pregnancy centres, lowering the temperature is a wise course. The chief justice, John Roberts, encouraged compromise during the court’s shorthanded stint and, according to Justice Elena Kagan, deserves credit for pushing his colleagues to “keep on talking” until, in all but a handful of cases, consensus came.
Chances of civility and modesty may be high in the short run, but Stephen Vladeck of the University of Texas warns that the new conservative majority may soon enjoy ample opportunity to assert itself on the Supreme Court. There will be plenty of time, Mr Vladeck says, and plenty of cases, for the five-justice conservative bloc to flex its muscles.