The U.S. Supreme Court opens a new court term Monday, while across the street at the Capitol, Republicans are seeking to jam through, before the Nov. 3 election, President Trump’s nomination of Amy Coney Barrett to the court.
Trump offered Barrett the nomination just two days after Justice Ruth Bader Ginsburg died. And since then, Senate Republican leader Mitch McConnell has been leading the GOP charge to get Barrett confirmed before Election Day.
It’s a race to the political finish line made more difficult by the fact that at least two members of the Senate Judiciary Committee, Utah Republican Mike Lee and North Carolina Republican Thom Tillis, have tested positive for the coronavirus and, on Saturday, McConnell said the committee will start the hearing as scheduled on Oct. 12.
Regardless of what is happening in the Senate, the Supreme Court is carrying on in its usual stately fashion. The court is an institution built on tradition, and the traditional opening day of the term is the first Monday of October.
This time, however, there will be just eight justices, not the usual nine, and because of COVID-19, once again the justices will gather by telephone hookup to hear the lawyers make their arguments. Because they will not be together, there will be none of the usual freewheeling debate; instead, the justices will ask questions in order of seniority, with each justice limited to just a few minutes. And once again, the public will be able to listen in.
A lot has changed since July, when the court concluded a tumultuous term, surprising observers with lopsided decisions favoring LGBT rights in one case and repudiating Trump’s claim of total immunity in two others involving grand jury and congressional subpoenas.
In other more closely divided rulings, Chief Justice John Roberts, on some notable but rare occasions, broke with fellow conservatives to cast the deciding fifth vote with the court’s liberals. His vote to strike down a Louisiana anti-abortion law infuriated some conservative politicians, but it was typical of Roberts. He wrote separately from the liberal justices, stressing that he had dissented when the court just four years earlier had struck down an identical law in Texas, but he said that 2016 decision was now binding precedent and he was obligated to uphold it.
Despite that “institutionalist streak,” with Ginsburg’s death and her replacement by the very conservative Barrett, Roberts may well have lost his leverage, observes University of Michigan law professor Nicholas Bagley.
“The chief justice is no longer going to be the center vote,” he notes. In short, the hard-line conservatives on the court can prevail without Roberts.
Obamacare on the chopping block again
Just how far right the court will move could become apparent quickly in a case to be argued a week after the election. It is the third challenge to the Affordable Care Act, which in the past was upheld by votes of 5-4 and 6-3.
This time, the Trump administration and a coalition of red states are arguing that because the Republican Congress three years ago zeroed out the monetary penalty for those not covered by insurance (the so-called mandate), the whole law is now void.
If the administration were to prevail, there would no longer be protections for those with preexisting conditions; health insurance for some 22 million people under Obamacare would likewise be gone, and so too would be many other protections that people have gotten used to.
Trump’s newest supreme court nominee, Barrett, has been highly critical of Chief Justice Roberts’ reasoning in the previous Obamacare cases.
But even Paul Clement, who argued on behalf of those challenging the law in the Supreme Court the first time, thinks this case is a stretch.
“It’s just hard for me to say that the mandate is central when it doesn’t have any teeth,” he says, noting that Congress has repeatedly refused to repeal the law in the wake of previous Supreme Court decisions and that the penalty no longer exists.
There is, he adds, “an air of surreality” around the current case. Indeed, sources say that top Justice Department officials tried and failed to talk Trump out of bringing the case.
The Obamacare case is just one of many controversies flashing red on the Supreme Court docket this term — many of them political.
Some cases are already being expedited. One involves how many seats each state gets in the House of Representatives. The Constitution requires the “whole number of persons in each state” to be included for apportionment purposes. But Trump maintains he has discretion to determine the numbers and has said he intends to exclude noncitizens without legal status from the count. A three-judge federal court prevented him from doing that. Now the case is before the Supreme Court.
Another Bush v. Gore?
In addition, there are numerous cases directly involving the upcoming election, cases that are being teed up in the wings and that could determine who is the next president.
“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,” says Irv Gornstein, director of the Supreme Court Institute at the Georgetown University Law Center.
And that’s just the beginning. Among the other controversies is a case testing whether a House committee conducting impeachment hearings is entitled to secret grand jury transcripts — a case that dates back to the Mueller investigation but has important implications for congressional powers in the future.
Then, too, there is a case that pits the rights of religious groups against state and federal anti-discrimination laws. On one end is Catholic Social Services of Philadelphia, and on the other, the city, which contracts with a wide variety of groups that it pays to screen and certify couples for foster care.
The city cut off Catholic Social Services because the group refused, on religious grounds, to certify same-sex couples, and that violated the city’s nondiscrimination law. The lower courts upheld the city’s decision, citing the Supreme Court’s 1990 decision declaring that religious groups are not entitled to exemptions from neutral, generally applicable laws. The decision was written by conservative icon Justice Antonin Scalia. Nonetheless, four of the court’s current conservatives have expressed an interest in overturning that decision, and with the addition of Barrett, there may well be a majority.