The nine Supreme Court justices will return to the relative quiet of their marble-lined corridors and majestic chamber Monday to face an explosive docket of cases on issues such as abortion, immigration, the Second Amendment and LGBT rights.
All this will play out against the backdrop of the 2020 presidential campaign and as political warfare has broken out across the street in the Capitol building with the launch of an impeachment investigation against President Donald Trump.
Last term, the justices — five appointed by Republican presidents and four by Democrats — tip-toed at times around controversial issues, they formed odd bedfellow alliances and largely avoided the bitter vitriol of the other two branches.
This term, in contrast, will test even the most civil branch of government as the justices take on issues that often produce sharp divides as the justices break down along familiar ideological lines.
Irving Gorstein, the executive director of the Supreme Court Institute at Georgetown University Law Center, described the term as “probably not the revolution that some seek and others fear, but we will likely see the court moving further and faster in a rightward direction. The docket almost guarantees it.”
A year ago Sunday, protestors stormed the steps of the Supreme Court building protesting Brett Kavanaugh’s controversial confirmation. The cases coming up will show the impact of the conservative taking over the seat of the conservative, but more moderate on social issues, Justice Anthony Kennedy.
And Chief Justice John Roberts, a man who once compared judges to umpires, sits both literally and at times figuratively at the center of the Court.
In rare public appearances, he never fails to point out that the Court’s work is not infected with politics. But in the coming months, he, himself, could conceivably be called to travel across the street to preside over perhaps the most political event of all: a presidential impeachment trial.
Here are some of the blockbuster cases coming up:
LGBT rights — October 7
In cases closely watched by supporters of LGBT rights, the court will consider whether federal employment law that bars discrimination based on sex encompasses claims of discrimination based on sexual orientation and gender identity.
Lower courts have split and the Trump administration argues that Title VII of the Civil Rights Act does not provide such protections.
The cases are particularly significant because Kennedy — long a champion of LGBT rights– has been replaced by his former clerk, Kavanaugh.
During the Obama administration, the Equal Employment Opportunity Commission, an independent agency responsible for enforcing federal laws that make it illegal to discriminate based on sex, took the position that federal law does encompass protections for gender identity and sexual orientation.
But in 2017, then-Attorney General Jeff Sessions issued a memo taking the opposite position. That means — as things stand — the position of the Justice Department is different than that of the EEOC.
At issue are two cases — Bostock v. Clayton and Altitude v. Zarda — that concern discrimination based on sexual orientation, and a third, R.G. and G.R. v. EEOC, that target gender identity.
The transgender case is especially noteworthy because it represents the first civil rights case concerning transgender individuals that the Supreme Court has ever heard. It concerns Aimee Stephens who worked for six years as a funeral director before announcing that she was transitioning. She informed her boss in 2013 and two weeks later was fired.
In addition, the case could have broader implications when it comes to the areas of housing and education.
“If the Court says that discrimination based on the basis of sexual orientation or gender identity doesn’t count as discrimination on the basis of sex under Title VII, it might be impeding future administration’s ability to protect the LBGT community by additional regulations,” Leah Litman, an assistant professor of law at the University of Michigan Law School, said in a recent podcast called Strict Scrutiny.
DACA — November 12
President Donald Trump’s signature issue is immigration, and in November the court will consider his administration’s decision to phase out DACA, an Obama-era initiative that protects nearly 700,000 young undocumented immigrants who came to the United States as children from deportation.
The eventual ruling will have a major impact one way or another in the presidential race.
At issue before the justices is not the legality of the program, but how the administration decided to phase it out.
Plaintiffs, including the University of California, a handful of states and DACA recipients argue that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
Lower courts agreed and issued nationwide injunctions that allowed renewals in the program to continue.
The Trump administration appealed the decision to the Supreme Court, and at the time, the President predicted success: “We want to be in the Supreme Court on DACA,” he said. Trump has used the lower court rulings to argue against a push for comprehensive immigration reform.
In court papers, Solicitor General Noel Francisco argues that “consistent with the view of the Department of Justice, DHS has decided that the policy is unlawful and should be adopted only by legislative action, not unilateral executive action.”
He said that the administration was well within its legal rights to “begin an orderly wind-down” based on serious doubts about the legality of the program.
Theodore Olson, a Supreme Court veteran who served as the solicitor general under the Bush administration, is representing the DACA participants.
DACA has allowed people, Olson argued in Court papers, “to obtain an education, work and contribute to this nation and its economy without constant fear of deportation.”
Olson said that the law demands “and the public deserves—a genuine analysis and lucid explanation of the relevant policy considerations before reversing a long-standing policy and subjecting 700,000 individuals to deportation to unfamiliar nations where they may not even speak the language.”
Second Amendment — December 2
The docket currently includes a Second Amendment case granted last term that marks the first time the justices will take up the issue after the late Justice Antonin Scalia’s landmark 2008 opinion and a follow-up opinion two years later.
Supporters of gun rights believe lower courts have been thumbing their noses at those opinions by upholding some types of restrictions and are eager for a newly solidified conservative majority of the court to take up the issue.
The New York City law at issue regulates where licensed handgun owners can take a locked and unloaded handgun.
At the time the Court granted the case, the law blocked licensed individuals from removing a handgun from the address listed on the license except to travel to nearby authorized small arms ranges or shooting clubs.
The New York State Rifle & Pistol Association and individual plaintiffs challenged the law arguing that it was too restrictive and that a New Yorker could not transport his handgun to his “second home for the core constitutional purpose of self-defense or to an upstate county to participate in a shooting competition, or even across the bridge to a neighboring city for target practice.”
The Trump administration has also urged the Supreme Court to overturn the law.
Since the Supreme Court granted the case, however, the law was changed and lawyers for New York say the case is now moot.
After the Supreme Court granted review, the city amended the challenged regulation to enable licensed owners to transport their handguns to additional locations “including second homes or shooting ranges outside of city limits,” New York lawyers said in court papers. In addition, the State of New York amended its handgun licensing statute to require localities to allow licensed gun owners to engage in such transport.
But critics of the law, say that the only reason the law was amended was because opponents of gun rights feared that the Court’s new conservative majority might use the uncommon New York law to render a broad decision cutting back on gun restrictions.
The “new state law is itself the product of an acknowledged City-orchestrated effort to frustrate this Court’s review,” wrote Paul Clement, a lawyer for the New York State Rifle & Pistol Association and independent petitioners.
Abortion — TBD
On Friday, the justices announced they were adding the explosive issue of abortion to the docket. It’s the first time Trump’s two nominees — Kavanaugh and Neil Gorsuch — will hear an abortion-related case.
It concerns a Louisiana law, that has been on hold pending appeal, requiring doctors to have admitting privileges at a hospital within 30 minutes of the facility where the abortion is performed.
Kavanaugh’s place on the court is critical, because it was just three years ago that Kennedy joined with the liberal justices to rule against a nearly identical Texas law. Chief Justice John Roberts, Justices Clarence Thomas and Samuel Alito dissented.
In a twist, last February as the law was about to go into effect, Roberts stepped in, joining with the liberals, to block it until the justices could consider to take up the case.
Notably, Kavanaugh dissented at the time, saying the move was premature. He noted that Louisiana had already stated that if the justices had allowed the law to go into effect, the state would have commenced a 45-day “transition” period to review how it would impact the clinics. No provider, the state promised, would be forced to immediately cease operations.
Kavanaugh said essentially that the 45-day period would allow parties to get a true sense of the impact of the law. If the challengers still thought the law imposed an undue burden they could bring their challenges at that time.
Now, all eyes will be on Kavanaugh, but also Roberts, an institutionalist, who may not be comfortable with such a quick swerve on the issue after a mere three years.
Louisiana argues that the state law is necessary to provide a higher level of physician competence. The Center for Reproductive Rights, representing an abortion clinic and two Louisiana physicians, argues that if the law is allowed to go into effect it will leave “only one doctor to care for every woman seeking an abortion in the state.”
Religious Liberty – TBD
The religion clauses of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” will be front in center in a case out of Montana that will be argued later in the term.
At issue is when the Free Exercise Clause bars a state from refusing aid to religious organizations even though the aid is available to secular organizations.
The controversy stems from a student aid program created by the Montana legislature in 2015 that allowed individuals in the state to donate up to $150 to a scholarship organization and receive a tax credit. The organization, in turn, used the donations to fund scholarships at qualifying private schools. Soon after, the Montana Department of Revenue adopted a regulation that excluded religiously affiliated private schools from the program.
Three parents, who sought the scholarships so that their children could attend a Christian school, sued.
But the Montana Supreme Court held that the program violated the state constitution that bars public funds for religious purposes and invalidated the program.
The Trump administration told the Supreme Court the state provision at issue violates the federal constitution.
“The Free Exercise Clause, as incorporated by the Fourteenth Amendment, generally prohibits discrimination on the basis of religious status in the distribution of public benefits,” Francisco argued in court papers.
Joshua Matz, a lawyer with Kaplan, Hecker and Fink LLP, says he believes the new court will move to the right on the issue.
“There is a real appetite on the part of the conservative majority to rapidly expand the Free Exercise Clause while shrinking the Establishment Clause to a vanishing point,” he said.
Lawyers for the parents told the court in briefs that the Free Exercise Clause demands “that the government show neutrality — not hostility — toward religion in student-aid programs.”
Coming down the pike
As the Court term unrolls, other challenges will make their way before the justices. An aggressive solicitor general has come often to the court for emergency relief in cases concerning Trump administration policies.
In addition, significant cases concerning the legality of Obamacare and a challenge to Harvard’s admissions process program are still before the lower courts.
As for the lawyers making their arguments, the justices gave them a brief moment to make their case during oral arguments.
A rule change now gives lawyers 2 minutes before justices interrupt them with questions and comments.