Supreme Court Report
The U.S. Supreme Court reconvenes for its new term on Oct. 5 with grief in the air after the death of Justice Ruth Bader Ginsburg, a confirmation battle and election controversies swirling all around it and the court’s operations still disrupted by the pandemic.
On the first Monday in October, however, the other eight justices will turn to the cases on their merits docket. Like last May, arguments will be conducted over the telephone, with live audio made available to the public.
After last term’s major decisions expanding LGBTQ rights in employment, preserving deportation relief for undocumented immigrants, striking down a Louisiana abortion regulation and upholding the authority of state prosecutors to issue a criminal subpoena to President Donald Trump, the new term starts off with some relatively mundane cases.
It will quickly build to a couple of higher-stakes disputes over religious liberty and the Affordable Care Act, possibly with a new justice seated in time to hear those cases. Meanwhile, there is a palpable fear the court will find itself plunged into cases related to the presidential election.
“Last term was by far the most consequential term in recent memory in terms of the sheer number of blockbuster cases,” says Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center. “It also had more cases with surprise endings than any term I can remember.”
Gornstein says at first glance, it appears there will be “far fewer blockbusters and far fewer unexpected results” in the new term.
“But lurking in the background is the possibility that this could become the most tumultuous and divisive term since the Supreme Court decided Bush v. Gore 20 years ago and effectively determined who would be president of the United States,” he says.
October cases and controversies
The court will open with Ginsburg’s seat vacant, although Senate Republicans have set a fast timetable for hearings and a vote before Election Day on Trump’s pick for her replacement, Judge Amy Coney Barrett of the 7th U.S Circuit Court of Appeals.
“This should be a straightforward and prompt confirmation,” Trump said at the Sept. 26 White House event to introduce Barrett as the nominee. “It should be very easy.”
Sen. Lindsey Graham, R-South Carolina, the chairman of the Judiciary Committee, has said hearings will begin Oct. 12 with a goal of reporting the nomination out of the committee by Oct. 22. Then it will be up to the Sen. Mitch McConnell of Kentucky, the majority leader, to set a vote.
The justices, meanwhile, will hear 10 arguments in October, the most high-profile of which are a dispute on party affiliation requirements for the selection of state appeals court judges in Delaware, in Carney v. Adams, and an $8 billion copyright battle over software interfaces in Google v. Oracle America Inc.
The biggest cases of the term so far are scheduled for argument in November and December, by which time Barrett may have joined the court.
The case getting the most attention, particularly after Ginsburg’s death, is California v. Texas, concerning the minimum-coverage provision of the Affordable Care Act, President Barack Obama’s signature health insurance law.
After Congress in 2017 eliminated the tax penalty for individuals who fail to obtain minimum insurance coverage, Texas and 17 other states brought suit claiming the individual mandate was unconstitutional. A federal district court in Texas agreed and held that the provision could not be severed from the rest of the ACA, and thus, the entire law must fall.
The 5th U.S. Circuit Court of Appeals agreed that the individual mandate was unconstitutional but remanded the case to the district court for further proceedings to reconsider the remedy.
Proponents of the ACA, including California and 19 other states plus the District of Columbia, asked the Supreme Court to take up the case, including whether the other states even have standing to challenge the provision, whether the mandate is unconstitutional and whether even if so if it can be severed from the rest of the law. The court agreed to do so, though it set arguments for after the election.
The Trump administration has sided with Texas and argues that the entire health-care law must fall. Barrett, whose vote could be crucial assuming she participates, has been critical of Chief Justice John G. Roberts Jr.’s 2012 opinion for the court in National Federation of Independent Business v. Sebelius, upholding the individual mandate as a tax.
Barrett wrote in a 2017 journal article that the chief justice “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” If Roberts had interpreted the individual mandate payment as a penalty,” Barrett wrote, “he would have had to invalidate the statute as lying beyond Congress’ commerce power.”
The new case is the third fundamental challenge to the ACA to come before the high court (not counting other cases involving specific aspects of the law), and the fact that in comes amid a pandemic has only raised the stakes.
“It is a very consequential case,” says Elaine J. Goldenberg, a partner with Munger, Tolles & Olson, which is representing the U.S. House of Representatives in support of the ACA.
Paul D. Clement, a partner with Kirkland & Ellis who argued and lost on the main issue in the 2012 challenge but is not involved in the new case, says the addition of a new justice may make a difference on the issue of the constitutionality of the mandate. But he and other court observers expressed the view that the challengers face a tough fight in convincing the court the mandate cannot be severed and that the entire ACA must fall.
“I think the challengers have a real uphill battle when it comes to making the severability argument,” Clement says.
The case is set for argument on Nov. 10, one week after Election Day.
Religious liberty and presidential subpoenas
Two other cases set for argument this fall have prompted a fair share of discussion leading up to the new term.
In Fulton v. City of Philadelphia, the justices will examine the city’s decision to exclude Catholic Social Services, an agency of the Archdiocese of Philadelphia, from its foster care system over the church agency’s refusal to abide by the city’s nondiscrimination policy.
The church agency argues that it has a First Amendment free exercise of religion right to refuse to certify same-sex couples for foster parenthood because of the Roman Catholic Church’s teachings on marriage.
In rulings on preliminary relief, both a federal district court and the 3rd U.S. Circuit Court of Appeals held that the city was enforcing a neutral law of general applicability under the Supreme Court’s 1990 decision in Employment Division v. Smith. In granting review of the church agency’s case, the high court accepted a question of whether Smith should be reconsidered.
The case has potentially broad implications for the recent legal tug-of-war between nondiscrimination policies, especially in the area of LGBTQ rights, and those seeking accommodations under such policies on religious grounds. The potential for overruling Smith also would be momentous for free exercise law.
“The stakes are very high” on that question, says Katherine Franke, a professor at Columbia Law School and director of its Center for Gender and Sexuality Law.
Clement, however, pointed to complications in the factual record and said, “This is a case with two potentially important issues in religious liberty but also a lot of potential for the court to decide the case without deciding those two big-ticket issues.”
The case will be argued Nov. 4.
In Department of Justice v. House Committee on the Judiciary, to be argued Dec. 2, the court is set to take up a question that lingers from the Democratic-controlled House’s investigations of the president: Whether an impeachment trial before a legislative body is a “judicial proceeding” under the Federal Rules of Civil Procedure.
The case stems from the House committee’s efforts to obtain materials from the investigation conducted by Special Counsel Robert Mueller.
The case raises important issues, says Aziz Z. Huq, a professor at the University of Chicago Law School, but because of the already completed impeachment battle of the president and the closeness of the election, “it is arriving almost a year and a half after it would have been relevant.”
The court will add more cases to the 37 it has already granted review (some of those are consolidated), possibly as soon as Friday.
There is also the small matter of the election. This year already has been busy for election-related cases on the court’s “shadow docket,” which generally involves matters briefed and decided on an emergency basis. There are more such issues bubbling up to the court before the election. And the big fear is that as President Trump has predicted, the Supreme Court will be involved in major disputes after the election.
“I think the president anticipates cases about mail ballots ending up in the Supreme Court,” says Paul M. Smith, the vice president for litigation and strategy at the Campaign Legal Center in Washington, D.C. There is concern over the idea of state legislatures shutting down ballot counting and choosing the presidential electors legislatively, or a fight in Congress over which electors should vote, which could then end up before the high court.
“Hopefully, we won’t have that type of constitutional crisis this year, but we could,” Smith says.
The court will be sticking with its COVID-19 protocols of last spring for its October sitting at least, and possibly longer. That means telephone arguments, with the live audio available to the public.
Two justices, Stephen G. Breyer and Neil M. Gorsuch, discussed the pandemic-required changes at the court in separate appearances on Zoom on Sept. 17.
Breyer said there were pluses and minuses to telephone arguments, such as the opportunity for more intense listening by the justices but less dialogue than in regular arguments in the courtroom.
“I like it, but I’m not sure I’d like to do it all the time,” he said to a remote audience of George Washington University law students.
Gorsuch said the justices also meet by phone for their private conferences, “which has its challenges with nine people on a conference call.”
Speaking to students for a remote event organized by the National Constitution Center, Gorsuch said that despite similar challenges for telephone arguments, “it worked well this spring, and my hope is it will continue to work well this fall.”