The Supreme Court’s Next Three Weeks Could Shake Up the 2020 Election
(Bloomberg) -- The U.S. Supreme Court enters the homestretch of its term with looming decisions that could affect the 2020 election and thrust the court even deeper into the nation’s political wars.
Between now and the end of June, the nine justices will rule on two intensely political issues -- whether President Donald Trump’s administration can put a citizenship question on the 2020 census and whether federal courts can strike down voting maps as excessively partisan.
The court will also be making pivotal decisions about what cases to add for the term that starts in October and ends the following June, during the heat of the presidential campaign. The possibilities include a set of Trump appeals that would open hundreds of thousands of young immigrants to deportation.
After issuing just three opinions Monday, and then adjourning for the week, the court still has 24 to go. Here’s what will be atop the court’s agenda this month:
Census and Citizenship
The Trump administration wants census-takers to ask about the citizenship of every person in the country. The administration says that would reinstate a practice that dates back to 1820, though the question hasn’t been posed to every household since 1950.
The administration says the question would produce valuable data to help the Justice Department enforce the Voting Rights Act, a law passed to protect minorities at the polls.
But a federal judge called that explanation a “pretext” and said Commerce Secretary Wilbur Ross ignored evidence that the question would reduce participation in the census among non-citizens and Hispanics. Opponents recently said they had uncovered new evidence that the real goal was to give Republican and white voters more clout.
It isn’t clear whether the Supreme Court will consider the new information, or whether it would even matter. During arguments in April, the court’s conservatives suggested they were likely to uphold Ross’s decision to include the citizenship question.
The Supreme Court has never struck down a voting map as so partisan it violates the Constitution. Critics of what is known as partisan gerrymandering hope the court is poised to do so -- even though a less conservative set of justices weren’t ready to take that step a year ago.
The justices are considering a North Carolina congressional map, drawn by Republicans who explicitly sought a partisan advantage, and a Maryland voting district designed by Democrats to oust a Republican lawmaker. Opponents say those maps are so extreme they undermine democracy.
Chief Justice John Roberts has said the public perception of the court could suffer if it started refereeing map-drawing disputes between the two major parties. “We will have to decide in every case whether the Democrats win or the Republicans win,” Roberts said in 2017.
But a ruling that insulates partisan gerrymanders from attack would have political consequences as well. It would help Republicans, who are the more frequent beneficiaries of gerrymandering in part because their 2010 electoral success let them draw many of the current maps around the country.
Such a ruling would leave gerrymandering opponents to press cases in state courts or try to establish independent redistricting commissions in states where those are permissible.
The census and gerrymandering clashes are among 24 argued cases still unresolved. The court will also be deciding:
- Whether the Constitution permits a 40-foot cross that serves as a World War I memorial in a Maryland intersection just outside Washington;
- Whether the federal government can refuse to grant legal protections to trademarks that officials find to be lewd or vulgar, such as one for a clothing line known as “FUCT”;
- Whether to overturn a ruling that requires judges to defer to regulatory agencies when they interpret their own regulations;
- Whether to expand constitutional protections against double jeopardy by scrapping a decades-old doctrine that lets a state and the U.S. government press separate prosecutions involving the same conduct. The case could have implications for the reach of Trump’s pardon power.
In November, Trump’s team filed three fast-track appeals asking the court to consider letting him end President Barack Obama’s Deferred Action for Childhood Arrivals program. DACA, as it is known, prevents deportation of hundreds of thousands of immigrants who came to the U.S. illegally as children and lets them seek work permits.
Lower courts blocked Trump from abolishing DACA, saying the administration needed to give a better justification than its assertion that the program wasn’t legal.
The appeals were ripe for high court action in January, but the justices haven’t acted. It’s unclear why they are waiting, and it isn’t guaranteed they will act before the term ends. But if they agree to hear the appeals next term, the justices will be putting themselves at the center of one of the nation’s most polarizing debates.
Wedding Cakes, Abortion
The court is likely to say this month whether it will revisit the rights of bakers who say they have religious objections to making cakes for same-sex weddings. The justices have been deliberating for months over an Oregon case that resembles a Colorado dispute they resolved on narrow grounds last year.
Should they take the Oregon case, it would be part of a 2019-20 term that already features a major showdown over LGBT rights. The court has already agreed to decide whether federal law bars employers from discriminating against gay and transgender workers.
Finally, there is abortion. The court is due to say soon what it will do with an Alabama appeal that would in effect ban the most common abortion method for women in their second trimester of pregnancy.
The court made an incremental move toward giving states more power to regulate abortion last month when it upheld an Indiana law requiring clinics to bury or cremate fetal remains. It’s not clear the court’s conservative wing is ready to take up a case as sweeping as the Alabama one, but the justices are likely to give new clues about their intentions before the month is over.
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