Congress

Supreme Court term to be punctuated by presidential politics

Docket ‘almost guarantees’ court shifting further and faster to the right, expert says

Activists hold up signs at an abortion-rights rally at Supreme Court in Washington to protest new state bans on abortion services on Tuesday May 21, 2019. (Caroline Brehman/CQ Roll Call file photo)

The Supreme Court will confront ideological issues such as immigration and LGBT rights that have sharply divided Congress and the nation in a new term starting Monday that will bring more scrutiny to the justices during a heated presidential campaign season.

In many ways, the nine justices are still settling into a new internal dynamic with two President Donald Trump appointees in as many years. The court had few high-profile cases last term, amid the drama of Justice Brett M. Kavanaugh’s confirmation that gripped the nation and solidified the court’s conservative ideological tilt.

As the justices enter a new term Monday that lasts through the end of June, the big question remains how the conservative wing will use its majority to reshape the nation’s legal landscape, including on issues that have stalled in Congress.

“We will likely see a court moving further and faster and in a rightward direction,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center. “The docket almost guarantees it.”

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The court already will determine the power of the president in immigration policy and the fate of about 700,000 so-called Dreamers who arrived in the United States illegally as children. The justices could either remove or firmly establish the discrimination protections of LGBT employees. They could weigh in on Second Amendment rights for the first time in almost a decade.

More cases added this term could include a challenge to a Louisiana law that abortion rights advocates say would leave only one clinic in the state, as well as a case that could determine whether Congress can protect the heads of independent agencies from being fired by the president for policy disagreements.

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The court will step in on issues where Congress has been in partisan gridlock for years, and move squarely in the center of policy fights. Although the court itself is divided 5-4 on many of the most contentious cases, the justices in public comments have defended its reputation.

“The point is when you live in a politically polarized environment, people tend to see everything in those terms,” Chief Justice John G. Roberts Jr. said Sept. 24 at an appearance at Temple Emanu-El in New York. “That is not how we at the court function, and the results of our cases do not suggest otherwise.”

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David Cole, the national legal director of the American Civil Liberties Union, said the Supreme Court seems to have done everything it could last term to rise above the partisan rancor to not be seen as divided along partisan lines.

“It will be an interesting term to see whether, in fact, the court is able to part company from the rest of the government, the media, for the most part, and the culture, and try not to be divided along partisan lines,” Cole said.

It won’t be easy. The case about gun rights — in which the court is scheduled in December to hear arguments about a New York City law about firearm transportation that has since been changed — sparked a rare public exchange between senators over the legitimacy of the court if they don’t drop the case.

A group of Democratic senators led by Rhode Island’s Sheldon Whitehouse filed a brief that suggested the court needs to “heal itself” before the public demands it be restructured to reduce the influence of politics.

“The Supreme Court is not well. And the people know it,” the brief states. “Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

All 53 Republican senators shot back in a letter to the Supreme Court clerk that characterized the brief as an open threat of political retribution, and urged the justices “not be cowed by the threats of opportunistic politicians.”

“The implication is as plain as day: Dismiss this case, or we’ll pack the Court,” the letter states.

Several Democratic candidates have already discussed plans to add justices or impose term limits to regain what they see as flailing public confidence that the Supreme Court decides cases on law and not politics.

Big decisions could bring more heat. And that doesn’t count the potential gigantic Trump-related hot potatoes working their way through the courts that could land at the Supreme Court any time.

Trump and the courts

Lower courts will decide in the coming months whether House Democrats can obtain Trump’s financial records from accounting firms, get his federal tax records, force former White House counsel Don McGahn to testify, look at grand jury materials behind the special counsel investigation, or sue the president over a potential violation of a constitutional provision about using the office for personal profit.

Not to mention, Roberts would preside over an impeachment trial in the Senate, if the House does vote for articles of impeachment against Trump.

Many cases this term squeeze the justices between the positions of the Trump administration and positions that enjoy broad support in the country.

On immigration, the Trump administration wants to end an Obama-era program that allows Dreamers to stay here and work.

Polls have shown Americans largely favor protections for Dreamers, with several polls showing about three-quarters of Americans say they should be allowed to stay and apply for citizenship.

Congress has failed to act to protect Dreamers, so the Trump administration argues it has the authority to rescind the discretionary program. The court will hear arguments on the case in November.

It will be the third time the Trump administration will ask the justices to revive a major policy initiative that lower courts have blocked. Two terms ago, a 5-4 decision allowed the Trump administration to implement a travel ban, and last term, a 5-4 decision stopped the Commerce Department from adding a citizenship question to the 2020 census.

And the court will start early, when it hears a trio of cases Tuesday on whether the Civil Rights Act of 1964 that prohibited employment discrimination based on “sex” also covers sexual orientation and gender identity.

Democrat-backed legislation to provide LGBT workplace protections passed the House but is likely to stall in the Republican-controlled Senate. That’s the latest in years of efforts to ensure such protections.

Nearly 70 percent of Americans favor laws that would protect LGBT people from discrimination in the job market, according to a March poll from the Public Religion Research Institute. The Obama administration backed LGBT employment protections under the Civil Rights Act.

The Trump administration flipped positions and argues that Congress in 1964 did not intend to cover LGBT individuals and Congress would have to expressly do so.

The case will be the first time the Supreme Court will decide an LGBT rights case since the retirement of Justice Anthony M. Kennedy, who wrote a series of opinions such as the legalization of same-sex marriage in 2015 that helped usher in a new era of civil rights.

Some Supreme Court experts say the case might not divide justices so cleanly on ideological sides, since at least one conservative justice might join the four justices on the liberal wing for a majority based solely on the text of the 1964 statute.

“The way you probably get to five, if you can on this case, is to start with the left side of the court and then get a textualist who just doesn’t care what [Congress] thought in 1964 at all,” said Paul Clement, a partner at Kirkland & Ellis who has argued more than 95 cases at the Supreme Court.

Justice Ruth Bader Ginsburg, who made several public appearances this summer despite three weeks of radiation treatment in August for a tumor on her pancreas, said at a Georgetown Law event that the court agrees considerably more often than it sharply divides.

“I can safely predict that the new term will have a fair share of closely watched cases, and I look forward to the challenges ahead,” Ginsburg said.

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