
WASHINGTON — The Supreme Court was short-handed for most of the term that ended Monday, and it responded with caution, setting a modern record for consensus.
“Having eight was unusual and awkward,’’ Justice Samuel Alito told a judicial conference a few days after Justice Neil Gorsuch joined the court in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.’’
As Alito’s remarks suggested, the next term, starting in October, will be very different from the past one, which was defined by the long vacancy caused by the death of Justice Antonin Scalia in February 2016 and the court’s strenuous efforts to avoid 4-4 votes.
The court has already agreed to hear cases on President Trump’s travel ban, a clash between gay rights and claims of religious freedom, constitutional limits on partisan gerrymandering, cellphone privacy, human rights violations by corporations, and the ability of employees to band together to address workplace issues.
“Chalk it up to pent-up demand,’’ said Pratik A. Shah, a lawyer with Akin Gump Strauss Hauer & Feld. “The eight-member court dodged the most provocative or consequential cases, and the new nine-member court is making up for lost time.’’
The last term was marked by a level of agreement unseen at the court in more than 70 years. That was a consequence of a lack of divisive disputes on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks.
The court issued “a lot of what I’d call cautiously unanimous opinions — that is, opinions that are carefully written to decide cases on relatively narrow grounds and to steer clear of big jurisprudential tar pits,’’ said Jeffrey L. Fisher, a law professor at Stanford.
The court did deadlock twice, in two immigration cases.
Those cases will be reargued before all nine justices in the court’s next term. The court also sent a case on a cross-border shooting back to a lower court for further consideration.
Recent terms have ended with blockbuster decisions on gay rights, abortion, affirmative action, health care, and voting. “We got used to the idea that every year the court decides several of the biggest national political issues — six or seven consecutive ‘terms of the century’ — but this year saw a regression to the mean,’’ said Ilya Shapiro, a lawyer with the libertarian Cato Institute.
Less consequential cases seemed to produce consensus. According to data from Lee Epstein, a law professor and political scientist at Washington University in St. Louis, the percentage of cases decided by a 5-4 or a 5-3 vote was 14 percent, compared to an average since 1946 of 22 percent.
There were, of course, major decisions that revealed deep divisions.
One of them, Trinity Lutheran Church v. Comer, lowered the wall between church and state by a 7-2 vote.
“This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state,’’ Justice Sonia Sotomayor wrote in her dissent, which was joined by Justice Ruth Bader Ginsburg. “The court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.’’
In Ziglar v. Abbasi, the court ruled by a 4-2 vote that high-level officials in President George W. Bush’s administration could not be sued for abuses they were accused of committing after the Sept. 11, 2001, attacks.
In his dissent, Justice Stephen Breyer likened the decision to the Supreme Court’s “refusal to set aside the government’s World War II action removing more than 70,000 American citizens of Japanese origin from their West Coast homes and interning them in camps’’ in Korematsu v. United States.
But the justices also avoided hearing important disputes by dismissing an appeal in a case on transgender rights after the Trump administration shifted the government’s position and by turning down appeals in cases concerning restrictive voting laws in Texas and North Carolina.
In addressing racial discrimination, the court issued a series of decisions that heartened liberals.
In Buck v. Davis, Chief Justice John Roberts wrote a forceful majority opinion siding with a Texas man who had been sent to death row based on testimony laced with what the chief justice called “a particularly noxious strain of racial prejudice.’’
In Peña Rodriguez v. Colorado, Justice Anthony Kennedy, writing for the majority, said courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were tainted by racism. “Racial bias implicates unique historical, constitutional and institutional concerns,’’ he wrote.
In Bank of America Corp. v. Miami, Roberts provided the crucial fifth vote, joining the court’s four-member liberal bloc, to allow Miami to sue two banks for predatory lending under the Fair Housing Act of 1968.