WASHINGTON – After mostly avoiding controversy for the past eight months, the Supreme Court is heading into the final, frenzied few weeks of its 2020-21 term with a docket full of outstanding cases and rampant speculation about one its most senior justices.
From health care to voting to a dispute pitting LGBTQ rights against religious freedom, the nation’s highest court will soon start churning through blockbuster cases, dropping decisions that will reshape the law – and the political landscape.
Twenty-six cases – all of which were argued virtually because of the COVID-19 pandemic – remain on the docket.
“This term is a lot like the first few episodes of a new TV show,” said David Lat, a court observer who founded a legal newsletter and website called Original Jurisdiction. “It’s really just setting the stage. Sometimes you wish you could just fast forward through it, but it’s still important because we’re getting to know the characters…and we’re getting to know the issues.”
After the flurry of opinions, attention is sure to shift to Associate Justice Stephen Breyer, who at 82 is under pressure from progressives to retire so that President Joe Biden can name his replacement while Democrats hold their tenuous majority in the Senate. When justices step down, they often do so at the very end of the term.
The final month of the term, when the court typically hands down decisions in its most contentious cases, will also offer insight into the new 6-3 conservative majority. Much of the focus will fall on Associate Justice Amy Coney Barrett. Because she joined the court just last fall, her jurisprudence remains more of a mystery.
Between the pandemic, a riot at the U.S. Capitol and a new president in the White House, Washington has endured a tumultuous year. But the Supreme Court has managed to largely skate around divisive social issues that can bring it to the forefront of the nation’s attention. The justices jettisoned many controversies held over from the Trump administration earlier in the term, including lawsuits stemming from the 2020 election itself.
But that’s about to change because of decisions being made now laying the groundwork for the next term, which gets underway in October. The justices already agreed to hear an abortion case from Mississippi with enormous consequences for the court’s precedent as well as a major Second Amendment case from New York that could expand gun rights.
Here are five things to watch as the court rounds the turn into the final month of its term:
Religion or LGBTQ rights?
The court will soon rule on a blockbuster case questioning whether the City of Philadelphia can stop working with a Catholic charity that declined to screen same-sex couples as foster parents. Fulton v. Philadelphia is one of the most closely watched cases this year, setting LGBTQ rights against the Constitution’s protection of religious freedom.
That’s not a new fight, but the case was argued just days after Barrett joined the high court, giving conservatives another potential vote in favor of religious freedom. Some observers see the outcome in Fulton predicted by a series of recentemergency appeals in which the court shot down COVID-19 restrictions that limited church attendance in an effort slow the spread of the virus.
Eleven years after Congress approved the Obamacare law – and nine years after the court upheld its constitutionality – conservatives are taking another crack at unwinding former President Barack Obama’s biggest policy achievement.
Though the justices signaled during arguments in November that they are not keen to strike down the entire law, the case presents an opportunity for them to do so.
In a decision from 2012 written by Chief Justice John Roberts, the court found Congress was within its rights to include a penalty in the law for Americans who choose not to obtain health insurance. The penalty, the court held, amounted to a tax. But in Republicans’ 2017 tax law, Congress zeroed out the penalty, eliminating the mandate’s enforcement.
The issue before the Supreme Court is whether a penalty of $0 can still be justified legally as a tax. And a bigger question also at play in the case: If it can’t, can the rest of the Obamacare law stand?
The justices are poised to decide an important voting rights case at a time when some states are moving quickly to pass laws in response to the 2020 election.
At issue is an Arizona law banning what critics call “ballot harvesting,” when outside groups pick up mail-in or absentee ballots from voters and deliver them to election officials. Opponents say the practice invites fraud (though instances of fraud are rare) and supporters say it enfranchises low-income voters who may be busy working multiple jobs or can’t easily access transportation or even, in some cases, the mail.
The bigger issue in the case is whether a provision of the 1965 Voting Rights Act will stand. Civil rights advocates are concerned the court could undermine a provision of the act that allows people to bring claims against states for election laws that have a discriminatory result. Advocates prefer that standard to the much higher bar set by the court in 1980 that requires them to prove lawmakers had a discriminatory intent.
That’s important because several states are passing new laws intended to limit ballot access in response to baseless allegations of fraud asserted after the 2020 election. As of late March, legislators had introduced 361 bills with restrictive voting provisions in 47 states, according to the nonpartisan Brennan Center for Justice.
Will Breyer retire?
Perhaps the most momentous decision from the Supreme Court this term won’t come in the form of an opinion: That is, whether Breyer will retire after 27 years on the nation’s highest bench.
Breyer, President Bill Clinton’s second nominee to the court, has come under mounting pressure to leave while Democrats retain control of the Senate so that Biden can more easily confirm his replacement. The new president has vowed to nominate a Black woman to the high court for the first time in history.
Breyer hasn’t indicated his intentions.
“The present court is often described as having a ‘conservative’ majority,” Breyer said during a two-hour address at Harvard Law School in April. “But the court did not hear or decide cases that affected political disagreements arising out of the 2020 … election. It did uphold the constitutionality of Obamacare, the health care program favored by liberals. It did reaffirm precedents that favored a woman’s right to an abortion.”
Abortion, guns on the horizon
One factor that may be weighing on Breyer’s mind: The coming term, which begins in October, is already looking far more compelling than the current one.
The court will decide a major case next year about whether pre-viability bans on abortion such as Mississippi’s are constitutional. The court has ruled in past cases that a woman has a constitutional right to an abortion before fetal viability outside the womb – roughly 24 weeks. Mississippi bans most abortions after 15 weeks.
Meanwhile, the court said in April it will decide a challenge to New York’s gun licensing requirements that could expand protections for carrying concealed weapons, potentially yielding a major Second Amendment decision by the justices for the first time in more than a decade.
Also in the mix as potential issues the court may decide to hear: An affirmative action challenge against Harvard University, a case questioning whether transgender students may use a bathroom consistent with their gender identity and a suit questioning whether women should have to register for the draft when they turn 18, as men are supposed to do.
Many of those culture war issues could be decided in the run-up to the 2022 midterm elections.
After the death last year of Associate Justice Ruth Bader Ginsburg, Breyer is the most senior member of the court’s liberal wing. That means he’d be in a position to control who writes opinions in cases where the left-leaning justices cobble together a majority.
That, Lat said, may provide incentive for him to stay.
“Why would you want to leave before this historic term?” he asked. “It’s like leaving a concert while the opening act is still playing.”
Source: USA Today – Breaking News