Shrinking high court docket bedevils conservatives

Richard Wolf | USA TODAY

WASHINGTON — The Supreme Court's docket is shrinking, and with it an opportunity for conservatives to make gains in several policy arenas, from abortion and age discrimination to low-income housing and labor relations.

All four of those issues have disappeared from the justices' schedule in recent weeks before they could be decided on their merits. Each time, given the court's conservative tilt, liberals heaved a sigh of relief.

The next time the justices take their seats in court, they will confront what was to be the marquee case of the term: a battle between the White House and Congress over the power to make appointments. But even that case has lost some of its steam.

The dispute between two branches of the government, to be decided by the third, involves a president's ability to fill vacancies without Senate confirmation by making appointments during congressional recesses. Presidents of both parties have used that power to avoid filibusters, when just 41 of 100 senators can block action on any nominee.

Democrats who control the Senate — as well as the White House — changed the rules last month to defang what had been the most important power of the minority party. Now judicial and executive branch nominees can be confirmed with a simple 51-vote majority. So although the high court's ruling could be critical in years when the White House and Senate are divided, the standoff that led to the lawsuit no longer exists.

"Because the immediate crisis is over, a lot of the concerns over the case have died down, but what the Supreme Court does in this case is going to matter a great deal the next time we have a divided government," says Ian Millhiser, senior constitutional policy analyst at the liberal Center for American Progress.

Going into October, the Supreme Court's docket already lacked blockbusters such as last year's three-day extravaganza on President Obama's health care law or this year's hat trick on same-sex marriage, affirmative action and voting rights. Still, the list included plenty of important cases.

Several of those remain. Decisions are pending in cases involving the financing of federal elections, state bans on racial preferences, prayer at government meetings and federal treaty-making powers. Cases still to be heard will focus on federal greenhouse gas regulations, gun purchases, buffer zones at abortion clinics, child pornography and capital punishment for people with intellectual disabilities.

A series of developments did away with several other noteworthy cases that offered the court's 5-4 conservative majority opportunities to steer the law their way:

"Given the court's makeup ... you figure it's going to go in a conservative or libertarian direction," says Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute. For that reason, he says, "these are all developments that have some people breathing a sigh of relief."

First to go in October was an age discrimination lawsuit won in lower courts by a 55-year-old Illinois state employee who was replaced by a younger person. Since the justices usually accept cases with an eye toward reversing the prior ruling, they might have denied the man's claim. Instead, they dismissed the case as "improvidently granted" because of technical flaws.

In November, the court dismissed what could have been a major abortion rights case after the Oklahoma Supreme Court clarified the facts — namely, that the state's law creating a strict protocol for medication abortions would all but eliminate them. The justices decided to leave alone the state court's decision striking down the law, rather than reconsidering the restriction.

Less than two weeks later, the justices were forced to dismiss a housing discrimination case from Mount Holly, N.J., after the town settled with low-income residents threatened by redevelopment. Civil rights groups had feared that the high court would jettison the "disparate impact" standard that lets minorities avoid having to prove intentional discrimination.

And last week, the court ditched a case from Florida that tested the legality of labor-management "neutrality agreements." The deals are used frequently by unions to organize workers in exchange for promises not to strike. Although the union had lost at the appeals court level, labor officials doubted their chances at the Supreme Court.

It's not clear how much influence liberals on the court or off had in getting the various cases dismissed. Michael McConnell, a conservative and former federal appeals court judge heading the Constitutional Law Center at Stanford Law School, says it would come as no surprise.

"There's not much mystery that there are parties who are trying to avoid having significant cases with a long-term impact decided by the current composition of the court," McConnell says.