Under the shadow of an unprecedented, unprincipled, and chaotic confirmation process for a new justice, not to mention the election, the pandemic, and a president in the hospital casting doubt on the transfer of power, the Supreme Court begins its 2020-21 term on Monday.
As usual, there are several high-profile cases and emergency petitions on the court’s docket, touching the Affordable Care Act, voting rights, LGBTQ equality, immigration, and President Donald Trump’s border wall, among other issues.
But of course, it’s not business as usual. Oral arguments will be taking place over the phone, largely open to observers. All of the cases to be heard in the month of October were postponed from last spring due to the COVID-19 pandemic. And of course, only eight justices will be on the call. Here’s a look at what’s at stake.
ADVERTISEMENT
1. Obamacare
In California v. Texas, the Supreme Court will for the third time consider the constitutionality of the Affordable Care Act as well-funded conservative activists groups keep bringing suits challenging the law.
Doctrinally, the case is about whether the individual mandate, which requires everyone to get health insurance, is constitutional. In 2012, the court held that it was, because the mandate was basically a tax. In 2016, however, Congress revoked the tax penalty. Is something a tax if no one has to pay it?
In terms of realpolitik, however, Chief Justice John Roberts was once the swing vote for Obamacare, joining the court’s four liberals. But now there are only three liberals. So the outcome of the case may well come down to whether Judge Amy Coney Barrett becomes Justice Amy Coney Barrett.
Without Justice Barrett, the case might go 4-4, leaving the ACA intact. With Justice Barrett, it would likely be 5-4 against, thus eliminating the Affordable Care Act and causing up to 129 million people to lose their health insurance, amidst a global pandemic, because of pre-existing conditions.
Ironically, California v. Texas will be argued just one week after Election Day.
2. Voting Rights
In light of President Trump’s unprecedented and democracy-defying threat to reject the results of the election—and his citing of the election as a reason to stack the court with another conservative justice—it’s quite possible that the Supreme Court will play a decisive role in the 2020 election, as it infamously did in 2000 (when, incidentally, a young Brett Kavanaugh was on George W. Bush’s legal team).
No one knows what kinds of challenges the court might hear in November. But already, it has heard several.
Last week, while the country awoke to news that its mask-mocking president had contracted COVID-19, the Court quietly tipped the scales in favor of Republican lawmakers in Arizona, who had banned voters from voting out of precinct, and banned anyone other than caregivers and family members from collecting mail-in ballots.
The Ninth Circuit Court of Appeals had found that the policies violated the Voting Rights Act (or what’s left of it), but last week the Supreme Court agreed to review the decision, meaning the bans will be enforced on Election Day.
Arizona, of course, is one of the dozen or so states that is up for grabs in the presidential election.
The court also accepted an emergency appeal last week from South Carolina, where the presidential election is not much in play, but the balance of power in the Senate is.
There, Republican lawmakers passed a requirement that absentee ballots be signed in the presence of a witness—especially galling in the age of COVID-19. That law was put on hold during the appeal process, then allowed to take effect, then put back on hold.
The GOP is now arguing that the back-and-forth itself violates the Supreme Court’s holdings on election law. An opinion is expected any day now—and it could well decide which party has a Senate majority in 2021.
Despite Chief Justice Roberts’ best efforts to keep the court above the political fray, it, like Al Pacino in Godfather III, keeps getting pulled back into it.
3. LGBTQ Equality
Another major case to be heard in November is Fulton v. City of Philadelphia, about whether taxpayer-funded, religiously affiliated foster care and adoption agencies can turn away prospective parents for religious reasons. (And, conversely, whether a city can require them to treat everyone equally without violating the First Amendment.)
Here, too, the doctrinal issues are complicated, but the political facts are fairly clear: once again, a religious entity seeks an exemption from the laws that govern everyone else, and seeks permission to deny someone their equal rights because of a claimed religious reason.
Judging by past cases, Chief Justice Roberts is more likely to side with the court’s conservatives anyway. Without Justice Barrett, it will probably be 5-3 but might be 4-4. With Justice Barrett, it’s 6-3 or 5-4, either way a victory for the religious organizations and a significant setback for LGBTQ equality.
Finally, there are also some significant cases that may not be argued if Vice President Joe Biden wins the election.
Trump v. Sierra Club is the long-awaited challenge to Trump’s border wall—more specifically, to his diversion of $2.5 billion in money earmarked for drug enforcement in order to pay for it. That case isn’t likely to be argued until February. Which means that if Biden wins, it will be moot.
Same with Wolf v. Innovation Law Lab, challenging Trump’s “Remain in Mexico” program; Azar v. Gresham, challenging work requirements for Medicaid; and numerous other challenges to Trump policies.
Then again, maybe the ourt will end up deciding its own docket, if it rules on the validity of the presidential election with three justices appointed by Trump, each illegitimate in their own way (a stolen seat, credible allegations of sexual assault, a lame duck appointment in the shadow of a plague), perhaps deciding the fate of the country.
