The U.S. Supreme Court opened its new term on Monday, with Judge Amy Coney Barrett’s confirmation battle looming. She is poised to replace Justice Ruth Bader Ginsburg, who died on September 18. But with the White House now a superspreader site, the U.S. Senate floor was temporarily shut down after several members tested positive. Whether Senate Majority Leader Mitch McConnell will succeed in ramming Barrett’s nomination through before the election thus remains to be seen.
Looking to the term ahead, there are—so far—four cases on the Supreme Court docket worth knowing about.
The blockbuster case this fall is Texas v. California, which is scheduled for oral argument the week after the Nov. 3 election that will decide the political fate of the man who nominated Judge Barrett. The case is the second challenge to the Affordable Care Act (ACA) to reach the high court. In 2012, the Court decided American Federation of Independent Business v. Sebelius, which salvaged the ACA from constitutional demise on the theory that the so-called individual mandate—the part of the law that requires Americans to carry a certain level of health insurance or pay a penalty—was a tax and thus constitutional.
With the 2017 Tax Cuts and Jobs Act, Congress amended the law to lower the individual mandate penalty to $0. In the pending challenge, a group of twenty states claims that, because the zero penalty generates no actual revenue for the federal government, it is no longer a tax, and thus unconstitutional. The lower courts agreed with the states. The Supreme Court will decide whether the individual mandate must go and whether, if that provision is struck down, the rest of the ACA must fail along with it. The Trump administration has taken the position that only the statute’s protections for pre-existing conditions must be scrapped along with the individual mandate; the rest can stay, including federal funding for premium subsidies and Medicaid expansion. Seventeen other states are defending the ACA in the case.
In a 2017 essay, Barrett, then a law professor, criticized Chief Justice John Roberts’s majority opinion in Sebelius, asserting that it “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Approximately 20 million people currently have health care due to the ACA. Their lives hang in the balance of the anticipated 6-3 conservative majority that would include a Justice Amy Coney Barrett.
Just this Friday, the Supreme Court agreed to take up two consolidated cases this term, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, which deal with voting rights. It is well documented that the Republican party has been categorically challenging changes to states’ voting laws that would allow easier access to the ballot during the coronavirus pandemic, presumably on the belief that keeping people from voting is the best way for the GOP to hold on to political power.
It comes as a surprise to many people that there is no affirmative right to vote in the original Constitution, which leaves the electoral process largely up to individual states. Although the Supreme Court has recognized an implied right to vote in the Constitution, the lack of express textual support for voting rights has allowed the Court to apply a squishy balancing test for constitutional challenges to voting laws. So long as a restriction on ballot access is not “severe,” the government can get away with it on the rationale that it’s needed to facilitate “fair and orderly elections.”
Importantly, moreover, in 2013 the Court struck down a key provision, section 5, of the Voting Rights Act of 1965—the civil rights legislation that required states with a history of disenfranchising certain communities to get approval from the Department of Justice before implementing any changes to their electoral systems. (Revised legislation has been sitting—untouched—on Mitch McConnell’s desk since late 2019.)
The cases now before the Supreme Court involve two Arizona laws restricting the right to vote. One requires ballots cast in the wrong location to be tossed out, while the other prevents certain categories of individuals from delivering another person’s absentee ballot to the state’s election office.
After the Court struck down section 5 of the Voting Rights Act, the legal battleground shifted to section 2 of the statute, which prohibits voting practices that discriminate on the basis of race and other characteristics. The consolidated cases involve a challenge under that provision. Section 2 plaintiffs must show that the lawmakers who enacted a particular voting-related law acted with “racially discriminatory motivation.” That’s an extraordinarily high bar because legislators are skilled at drafting legislation that appears to be racially neutral, even if it has the effect of disenfranchising voters of color.
Chief Justice Roberts is known for his skepticism about the Voting Rights Act, so we can anticipate that a Supreme Court without Justice Ginsburg is especially unlikely to stick its neck out for voters challenging limits on ballot access. The case is not expected to be decided until sometime in 2021, so it won’t affect the Nov. 3 election.
First Amendment and Religion
Another big one this fall is Fulton v. City of Philadelphia, which deals with the same kind of issue of balancing religious freedom and antidiscrimination laws that we saw in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights in 2017. That case involved a bakery that refused to make a wedding cake for a same-sex couple. The couple filed a civil rights claim with the Colorado Civil Rights Commission. The baker claimed that the First Amendment protects his right to discriminate against LGBTQ customers on religious grounds. The Supreme Court found for the baker, but not on the core First Amendment question of whether the Constitution guarantees a right to discriminate in furtherance of religious beliefs. Instead, it determined that the state civil rights board was guilty of misconduct warranting a ruling for the baker.
In the latest case, Catholic Social Services (CSS) and foster-care parents are suing the city of Philadelphia over its policy of refusing to place foster children with CSS or the parents it works with because of CSS’s refusal to work with same-sex couples. CSS says that the policy violates its religious beliefs. In 1990, Justice Antonin Scalia—Judge Barrett’s mentor—authored a decision holding that laws that do not specifically target religious practices are largely constitutional. The CSS plaintiffs are asking the Court to revisit that decision in this case.
The Mueller Report
The last in the lineup of important cases on the Supreme Court docket this fall is Department of Justice v. House Committee on the Judiciary, which will address an important separation of powers question: Can the House of Representatives get the grand jury records from the Mueller probe? Rule 6(e) of the Federal Rules of Criminal Procedure keeps grand jury materials secret with some exceptions, including for a “judicial proceeding.” The Department of Justice is taking the position that an impeachment trial before a legislative body is not a judicial proceeding, so Congress is out of luck. This position leaves oversight of presidential criminal wrongdoing effectively out of reach, because DOJ has also made the judicial branch off-limits through its internal policy against indicting sitting presidents.
If the eight remaining justices on the Court split 4-4 on any of these cases, the lower court’s decision will stand. With a Justice Amy Coney Barrett cementing a 6-3 conservative majority, we can expect much less hand-wringing over how the Court will come out in controversial cases: The more progressive stance will probably lose, for a generation or more.