A 1960s novelty toy consisted of a small plastic box with a jointed lid and a switch. When the switch was turned on, a hand emerged, grabbed the switch and turned it off, then retreated back into the box.
The Supreme Court’s October 2017 term, which will lurch to its end next week, has, to a surprising extent, come to seem like that novelty toy. Though last October promised a crop of blockbusters, the Court so far has taken every possible opportunity to avoid important decisions.
On Monday, the Court bailed out of the high-profile Wisconsin gerrymandering case on highly technical grounds. But Gill v. Whitford is not the only major case the Court has ducked; indeed, it is not the only major case the Court ducked during that very half-hour session Monday. The justices also artfully dodged Benisek v. Lamone, a companion gerrymandering case from Maryland, and delivered a narrow, and perhaps temporary, win for Fane Lozman, the civic gadfly arrested at a city council meeting in Florida for addressing topics the council members didn’t want to hear about.
So far during June, the Court has managed to strike down a Minnesota law against wearing political apparel at the polls without making any new law or, indeed, shedding any light on the old law; to vacate a lower-court decision concerning minor girls held by immigration authorities who seek abortions without hinting at the answer; to dodge with soothing platitudes the government’s angry ethics complaint against lawyers for the American Civil Liberties Union in that case; to reject an immediate appeal in an important abortion case from Arkansas, leaving the issue for now to a lower court; and, of course, to decide Masterpiece Cakeshop v. Colorado Civil Rights Commission with an opinion that favored the single anti-gay baker in his refusal to bake a cake for one particular couple, without deciding how future bakers will fare.