Suspense builds for Supreme Court moves on abortion, LGBT cases

The Supreme Court has yet to announce whether it will take up two of this year’s most closely watched cases, fueling speculation about the justices’ closed-door deliberations.

Justices have repeatedly put off saying whether they will hear arguments in a case challenging an Indiana abortion law enacted by then-Gov. Mike PenceMichael (Mike) Richard PenceThe most important pledge Democratic presidential candidates can make Pence communications director to leave White House White House crowd sings 'Happy Birthday' to Trump MORE, instead choosing to relist the case for their weekly private conference more than a dozen times since early January.

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They have done the same eight times since March for a case concerning an Oregon bakery fined for refusing to bake a cake for a lesbian couple.

Court watchers said that while the content of the weekly deliberations is secret, it’s very unusual for potential cases to be listed for consideration this many times.

They also said it’s possible that the sensitivity of the topics – LGBT and abortion rights – is causing the justices to be overly cautious in deciding whether to hear oral arguments.

The two cases are “almost a road map of the most sensitive hot-button issues,” A.E. Dick Howard, a law professor at the University of Virginia, told The Hill.

The justices gather at a weekly private conference to discuss issues such as requests from those seeking a Supreme Court review of their case. Only one justice is needed to raise a topic for discussion, while four justices have to sign on in favor of the Supreme Court hearing arguments in a case.

But cases listed as being up for conversation at the private gathering aren’t necessarily discussed, and can put off for deliberation at a future date.

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A handful of potential arguments presented to the justices each term tends to face a similar fate, popping up on the docket for consideration several times. Still, experts told The Hill that cases typically haven't been brought up as often as these two cases.

The justices’ decisions on whether to hear the cases will likely have political implications, as both pertain to divisive topics.

The Oregon case opens the door for a repeat of the closely watched case decided last year, when the court ruled in favor of a baker refusing to make a cake for a same-sex couple.

That narrow ruling was based on a state commission’s treatment of the baker, limiting the implications for similar cases. If the justices choose to hear arguments about the Oregon bakery case this time around, they could end up issuing a precedent-setting decision that affects broader LGBT protections.

Ryan Owens, a professor of political science at the University of Wisconsin-Madison, said the justices appear reluctant to take up the case, but they will eventually have to weigh in on sexual orientation discrimination and religious rights.

Similar to the previous case, the Oregon bakery’s owners refused to make a wedding cake for a lesbian couple, claiming it would be in violation of their religious beliefs.

“Whichever position they decide for, the other position is going to be extremely vocal,” Owens said.

The Indiana abortion statute challenged by abortion rights groups became law during Pence’s governorship, adding another layer of political implications that the court often seeks to avoid.

The law prohibits abortions based on the race, disability or gender of the fetus, and sets requirements for how fetal remains are disposed of.

The Supreme Court’s term is expected to wrap up by the end of June, and the justices will likely issue orders by then on which cases they will hear starting in the fall, when the next term begins.

The justices could also decide against making a final decision on the cases, and instead punt them for reconsideration in the next term.

Owens said the court has occasionally chosen to put off some cases if the subsequent decisions were to come during a presidential election year, in an effort to avoid effectively putting the topics on the ballot.

Howard suggested that Chief Justice John Roberts, who has sought to protect the institution of the Supreme Court from political attacks, is adding another layer of caution to these two cases.

He said these cases are among the “most exposed cases” on the court’s docket.

“They’re the very cases that invite pundits and the public in general to look at the court as Democrats and Republicans,” Howard said. “As we know, [Roberts] doesn’t want that.”

Howard said it’s also possible that a justice could be wary of signing on in favor of the court hearing a case if they fear the ruling could go against their own stance on the case.

He noted that with last year’s retirement of Justice Anthony Kennedy, often considered a swing vote, and the addition of Justice Brett KavanaughBrett Michael KavanaughSecond ex-Senate staffer charged in aiding doxxing of GOP senators Second ex-Senate staffer charged in aiding doxxing of GOP senators Supreme Court hands Virginia Democrats a win in gerrymandering case MORE, members of the court now have a better idea as to how the conservative majority will rule.

The court is expected to reconvene Monday and could resume issuing decisions on which cases it will take up.