Robert Barnes

Robert Barnes

The Supreme Court has a powerfully controversial docket for its term beginning Monday that will test Chief Justice John Roberts Jr.’s efforts to portray the institution as above the noisy and partisan battles of the moment.

Two unknowns — whether the court will be drawn into legal controversies arising from the House Democrat’s impeachment inquiry into President Donald Trump, and the health of the court’s oldest member, Justice Ruth Bader Ginsburg — add to the uncertainty.

Resolution of the most contentious cases could happen in June, in the heat of a presidential campaign in which the future of the court has emerged as a galvanizing issue for conservatives and liberals.

On the horizon, there are cases that could re-define when the government must give greater deference to a person’s religious beliefs, and perhaps even a third trip to the high court for the Affordable Care Act.

Last term, after the partisan bitterness that accompanied Justice Brett Kavanaugh’s ascension to the court, the justices sought common ground on some issues and put off others — abortion restrictions, for instance, and Barack Obama’s Deferred Action for Childhood Arrivals program.

The delay is over, and the conservative majority — bolstered by Kavanaugh and Justice Neil Gorsuch, Trump’s other appointee — is in position to be more assertive this term, according to those who watch the court.

“Probably not the revolution that some seek and others fear, but we will likely see a court moving further and faster in a rightward direction,” said Irv Gornstein, executive director of the Georgetown Law Center’s Supreme Court Institute. “The docket almost guarantees it.”

Some conservatives see opportunity.

“I actually can’t recall a time in the last 20 years that there were this many key issues that seemed ready for decision and primed for decision, and a court that seems open to them,” said Mark Rienzi, president of the Becket Fund for Religious Liberty.

Determining how far and how fast the court moves is Roberts, 64, entering his 15th year as chief justice and his second as the court’s pivotal member.

Since the retirement of Justice Anthony M. Kennedy in 2018, Roberts is the median between four more conservative colleagues on one side and four liberals on the other.

He uses every public appearance to try to persuade that the court — with conservatives chosen by Republican presidents and liberals by Democratic ones — may be ideological but is not partisan.

“When you live in a politically polarized environment, people tend to see everything in those terms,” Roberts said last month at an event at New York’s Temple Emanu-El. “That’s not how we at the court function and the results in our cases do not suggest otherwise.”

Roberts has noted the range of majority lineups last term, even in cases that divided 5 to 4. The court’s dominant conservatives made up the majority in only about one-third.

In the last term’s two most important cases — whether federal courts have a role in policing electoral maps for extreme partisan gerrymandering and whether the Trump administration could add a citizenship question to the 2020 Census forms — Roberts gave his first glimpses of how he might play his pivotal role.

He voted no in the gerrymandering case, joined by the conservatives, and no in the Census case, joined by the liberals.

At the event in Manhattan, Roberts lamented that the discord between the legislative and executive branches leaves the court with more decisions to make.

“We do seem to be getting more and more involved in every aspect of society in a way that would have been surprising to the framers of the Constitution,” Roberts said at one point.

Some events are beyond the court’s control.

Ginsburg’s health is one of them. Last December, the senior liberal member of the court had part of one lung removed after cancer was discovered. The recovery caused her to miss a round of oral arguments for the first time in 26 years on the bench.

This summer, the 86-year-old announced she had undergone radiation treatment for a tumor on her pancreas.

She has counteracted the worries about her condition with an impressive show of vigor: nearly a dozen speaking engagements over the last month-plus, traveling to Buffalo, Chicago, Little Rock, New York and elsewhere.

But if her health forced her from her seat, the Republican Senate has made clear it would move quickly to ensure Trump would name her replacement and solidify conservative control of the court.

Another potential controversy for the court: the impeachment inquiry. Nothing would put the court more in the political spotlight than having to rule on issues relating to the proceedings against the president.

But lawsuits seeking Trump’s tax returns and alleging he’s violating the Constitution with transactions through his family business with foreign governments are making their way through the legal process.

Congressional subpoenas for information from the executive branch are being ignored, and some on the left say the judiciary has a role to play in enforcing them.

“Where the House is seeking information that is relevant to its determination whether to impeach the president, it needs that information as quickly as possible,” said Brianne Gorod, chief counsel of the liberal Constitutional Accountability Center.

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The Washington Post’s Philip Bump in New York contributed to this report.

Robert Barnes is a columnist for the Washington Post.

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