The Supreme Court begins its new term Monday on unsettled ground, still dealing with the fallout of the COVID-19 pandemic and staring down a consequential health care case and the possibility of a contested presidential election that could redefine the public’s perception of the high court’s legitimacy.
Shorthanded at eight justices after the death of Ruth Bader Ginsburg, the court will start two weeks of oral arguments on relatively low-key cases that were originally set for March and April last term but postponed because of the coronavirus.
As they did for the first time ever at the end of last term, the justices will conduct arguments remotely over the telephone, which will be broadcast live through the media. The first day brings cases on the partisan makeup of Delaware’s courts and a dispute between Texas and New Mexico about the Pecos River.
But the huge political drama won’t be far away. One week later, across First Street Northeast, the Senate will start confirmation hearings for President Donald Trump’s pick to fill Ginsburg’s seat, Amy Coney Barrett.
Senate Republicans are racing to fill the seat before the Nov. 3 presidential election, which would further tilt the court’s ideological balance toward the conservative wing, ahead of the Nov. 10 oral argument for a case in which the Trump administration wants the court to strike down the entire 2010 health care law.
And if Trump’s repeated allegations, without proof, of problems with the flood of mail-in ballots are any indication, some legal challenge to the results of the presidential election could arrive at the nation’s top court in the weeks after that.
There aren’t a ton of major blockbuster cases on the docket at this point, however. Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law, said that at first glance, this term might seem like it will be quieter and more predictable than the last one that ended in July.
That last term was by far the most consequential in recent memory when considering the sheer number of blockbuster cases and “more cases with surprise endings than any term I can remember,” Gornstein said.
“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,” Gornstein said.
Election-related challenges could start pouring on to the Supreme Court’s docket from across the country, where lower courts grapple with how to extend deadlines or count votes amid an unusually large number of mail-in ballots because of the potential health risks of voting in person during a pandemic.
This week, Pennsylvania Republican lawmakers asked the Supreme Court to halt a decision from that state’s high court that would force election officials to count ballots received up to three days after Election Day. The Republicans argued the ruling was “an open invitation to voters to cast their ballots after Election Day” that could inject chaos and potential gamesmanship.
What the justices do with that petition is a big deal “not just because Pennsylvania is potentially a tipping-point state,” but because granting it or denying it “will likely be a harbinger of how it’ll handle similar challenges in other states,” tweeted Steve Vladeck, a University of Texas law professor.
The territory isn’t entirely new for the Supreme Court, where events over the past four years have repeatedly interrupted their work.
The death of Justice Antonin Scalia in 2016 and the confirmation fight left it shorthanded on the first day of the term that year. So did the retirement of Justice Anthony M. Kennedy in 2018 and the turmoil of the Senate’s epic showdown over Brett M. Kavanaugh’s nomination that spilled into the first days of that term as well.
The court in this new term, as it did in the term when Kavanaugh joined the bench, “may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” said David Cole, national legal director for the American Civil Liberties Union.
But the justices may not be able to, and the biggest possible controversy would be a contested presidential election.
“I’m sure that all of the justices are saying the official election officials’ Election Day prayer, which is, ‘Dear Lord, let this election not be close,’” Cole said. “If it’s close, they may get involved.”
Back in 2016, the shorthanded court appeared to go out of its way at times to avoid 4-4 deadlocks that let lower-court rulings stand, as if the Supreme Court had not heard the case at all.
In addition to a tie, the court could also find other ways to delay or remove a case from the docket without having to make a decision.
One potential candidate for that is the other political hot potato case, the House Judiciary Committee’s push to see grand jury materials in former special counsel Robert S. Mueller III’s investigation into interference in the 2016 presidential election.
Oral argument in that case is set for Dec. 2, just a month before this session of the House ends and at a point when Trump could be a lame-duck president who would be leaving office Jan. 20.
That’s just one of a number of cases the Supreme Court could find moot, particularly if there’s a change in administrations, Vladeck wrote for SCOTUSblog on the upcoming term.
It’s possible that “rather than resolve a complex inter-branch dispute, the justices might seize upon the intervening election of a new House of Representatives as grounds for vacating the decisions below and dismissing the government’s appeal,” he said.
The new term concludes at the end of June.