As Washington Divides Over Trump, Four Justices Seek Consensus

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(Bloomberg) -- Justice Elena Kagan committed a breach of protocol midway through the U.S. Supreme Court’s Dec. 5 argument in a case involving a cake for a gay wedding.

Seeing that a lawyer’s time was expiring but wanting to ask another question, Kagan said she was confident Chief Justice John Roberts would give the attorney a bit more time.

As Washington Divides Over Trump, Four Justices Seek Consensus

Kagan then looked sheepishly toward Roberts. "Is that OK?" she asked. Roberts gave her a look of mock exasperation, and the courtroom burst into laughter.

The fleeting moment showed the rapport between the two and offered a glimpse into the dynamics of a court that often splits 5-4 along ideological lines. Kagan and Roberts are part of a quartet of relatively centrist justices, along with Anthony Kennedy and Stephen Breyer, who at times can turn their chemistry into a consensus and avert a sharp divide.

The group will be tested during what could be a divisive stretch starting next week, when the court reconvenes after a month-long recess. Between now and the end of June, the court will rule on partisan gerrymandering, voter-database purges, mandatory union fees, Trump’s travel ban and possibly his effort to rescind a deferred-deportation program.

The four justices are hardly ideological soulmates. Roberts and Kennedy are Republican appointees who voted to curb campaign finance regulations and strike down part of the Voting Rights Act. Breyer and Kagan are Democratic appointees on the opposite sides of those issues.

But as a group they stand in contrast to their five less compromising colleagues -- Ruth Bader Ginsburg and Sonia Sotomayor on the left and Clarence Thomas, Samuel Alito and Neil Gorsuch on the right.

Muffling Disagreement

What the four share is a willingness to muffle some disagreements for what they see as a greater good. Each wants to avoid the perception that the court is "just another political institution," like Congress or the White House, said Richard Lazarus, a Harvard Law School professor who focuses on the Supreme Court.

"That shared institutional view is promoting their increasingly apparent efforts to find common ground in cases and to lower the decibel level," Lazarus said.

The approach extends off the court. The four tend to limit their public appearances to neutral settings and avoid suggestions of partisanship. Gorsuch, by contrast, has appeared in Kentucky with Senate Republican leader Mitch McConnell and spoken at President Donald Trump’s Washington hotel. Ginsburg has embraced her celebrity status and "Notorious R.B.G." nickname and once called Trump a "faker."

Among the challenges the consensus-builders face is the case that momentarily brought Kagan and Roberts together in December. The dispute, involving a baker who refused to make a cake to celebrate a same-sex couple’s wedding, pits religious and speech rights against anti-discrimination efforts.  

The case could well leave Kagan and Roberts on opposite sides and put Kennedy in the familiar position of casting the deciding vote in a 5-4 ruling. Kennedy, 81, is the court’s most frequent swing vote and will be the subject of retirement speculation in the coming months.

"It’s one thing for those justices to join together when the court is down a member and hearing uncontroversial cases," said Kannon Shanmugam, a Washington appellate lawyer at Williams & Connolly. "It’s harder to do it when the court is back at full strength and tackling historically divisive issues."

Roberts has been preaching consensus -- and the benefits of issuing limited rulings that can attract more votes -- almost since he became chief justice in 2005. "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement," he said in a 2006 speech.

That aspiration became more of a reality when Justice Antonin Scalia’s February 2016 death left the court shorthanded for 14 months. Consensus suddenly became necessary to avoid some 4-4 splits.

Keep Talking

"I think we all made a very serious effort to try to find common ground even where we thought we couldn’t," Kagan said last year. "And it sort of forced us to keep talking with each other."

Gorsuch has filled the vacancy, but the foursome is still leaving a subtle footprint. When the court cleared the travel ban to take partial effect in June, neither Roberts nor Kennedy joined the Thomas-Alito-Gorsuch trio in saying the entire ban should have been allowed to begin.

When the court let a later version of the travel ban take full effect in December, Kagan and Breyer stayed silent while Ginsburg and Sotomayor dissented. With the court set to hear arguments in April and issue a definitive ruling by June, the foursome might eventually cleave, but for now the group is holding together.

Other examples are piling up. Sotomayor and Ginsburg dissented -- but Breyer and Kagan didn’t -- when the court blocked a new North Carolina congressional voting map last month. Roberts and Kennedy went along with a January order requiring a new look at a Georgia death sentence, while their more conservative colleagues dissented.

Not everyone is a fan of the consensus-building. Roberts, in particular, has drawn scorn from conservatives eager to see the court articulate the types of broad principles embraced by Thomas and now Gorsuch.

"To make decisions more narrowly than necessary can be a dereliction of duty, depriving the lower courts of the guidance they need," said Carrie Severino, chief counsel of the Judicial Crisis Network, a leading advocate in support of Trump’s court nominees.

Lazarus, who was Roberts’s law school roommate, said the search for common ground is in part a reaction to the "hardening" views of the court’s conservative wing.

If so, that could give the effort staying power -- something Kagan said in September was her goal.

"I’m actually hopeful that the effect of it will continue now that we have a nine-member court," she said. Her aspiration was that "all of us will remember the value of trying to find a place where we can agree or where more of us can agree."

©2018 Bloomberg L.P.

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