Supreme Court Gets Star Turn in Own Drama Over Vacancy, Election
Supreme Court Gets Star Turn in Own Drama Over Vacancy, Election
(Bloomberg) -- The U.S. Supreme Court opens its new term next week in a swirl of uncertainty, amid a new justice’s politicized confirmation battle and a divisive presidential election the court might have to resolve.
The death of liberal Justice Ruth Bader Ginsburg ushered in President Donald Trump’s third nomination to the court, Amy Coney Barrett, and the prospect she may tip the balance further toward conservatives in time to decide election-related disputes.
The docket already is a meaty one, highlighted by a bid to overturn the Affordable Care Act, a high-stakes clash between religious and gay rights, a battle stemming from Special Counsel Robert Mueller’s investigation and multibillion-dollar disputes involving Alphabet Inc.’s Google, Oracle Corp., Fannie Mae and Freddie Mac.
On top of that could come a showdown over the Nov. 3 presidential election, with Barrett in place if Senate Republicans meet their aggressive timetable for confirmation. The court already is being hit with pre-election skirmishes over the rules for casting and counting ballots in the contest between Trump and Democrat Joe Biden.
“Everybody’s kind of on a hair trigger on both sides of the aisle filing litigation this year about the election,” said Paul Smith, vice president of the Campaign Legal Center, which advocates for expanding voting rights.
Trump has spent months laying the groundwork for a legal fight, claiming despite limited evidence that mail-in voting will produce widespread fraud. Though the court can operate with only eight justices, Trump says it needs nine in time to decide any election cases.
“I’m counting on them to look at the ballots, definitely,” Trump said at Tuesday night’s debate. “I hope we don’t need them in terms of the election itself.”
Election-related cases could arrive in many forms. This week Pennsylvania Republicans asked the court for an emergency order blocking the state from counting mail-in ballots received after Election Day.
More than 200 lawsuits have already been filed testing how to hold an election during a pandemic, with key fights raging in the pivotal states of Wisconsin, Michigan and Florida.
After the election, one side could challenge state results and create a sequel to Bush v. Gore, the 2000 Supreme Court case that put Republican George W. Bush in the White House by blocking continuing Florida recounts. Or the court may have to referee the electoral vote count fight that formally determines who is sworn in Jan. 20.
In a concession to the coronavirus, the justices will again hear arguments by telephone with live audio release, at least in October. The court held remote arguments for the first time in its history in May.
Affordable Care Act
A more certain fight is set for a week after the election, when Republican-led states and the Trump administration will argue for invalidating the Affordable Care Act, including its protections for people with pre-existing conditions.
Republicans have tried repeatedly to kill the 2010 measure, also known as Obamacare. The Supreme Court upheld the law’s core in 2012 in a 5-4 decision centering on closely related issues. The fight turned on the individual mandate, an ACA provision that originally required people to acquire health insurance or pay a tax penalty.
Writing for the court, Chief Justice John Roberts said the individual mandate was a legitimate use of Congress’s taxing power. A Republican-controlled Congress later joined with Trump to zero-out the tax penalty, leaving the mandate without any practical consequences.
Republican-led states then sued. They now argue that, without the tax penalty, Roberts’s rationale for upholding the individual mandate no longer applies. And the Republicans say the mandate is so integral to the law, even without any penalty attached to it, that the court now must strike down the whole thing.
Paul Clement, the lawyer who argued against the law in 2012, said opponents “have a very uphill battle” in seeking to invalidate the entire law. Both Roberts and Justices Brett Kavanaugh have said courts generally should be reluctant to strike down a whole statute because of a constitutional flaw in one provision.
Still, Barrett’s potential involvement could give Trump and the Republican-led states a boost. She criticized Roberts’s reasoning in the 2012 case as pushing the law’s text “beyond its plausible meaning.”
Religion and Gay Rights
The day after the election, the court will consider what could be a major religious-rights case. The question is whether Catholic Social Services can be excluded from participation in Philadelphia’s foster-care system because the group won’t work with same-sex couples.
A federal appeals court said Philadelphia, which contracts with private charities to screen potential foster families, could enforce a city anti-discrimination law.
The case raises issues the court sidestepped in the 2018 case of a Colorado baker who refused to make a cake to celebrate a same-sex wedding. Like the Philadelphia clash, the Colorado dispute tested the intersection of religious rights and equal treatment.
The Roberts court has consistently backed religious rights, doing so three times in the term that ended in July. The court might rule for the Catholic group without reaching the biggest issues, said Marty Lederman, a law professor at Georgetown Law Center in Washington.
Lederman said he expects “there will be many justices who are inclined to find a way to rule for Catholic Social Services, even though I think the city ought to win on the facts of the case.”
Mueller Redactions
A Dec. 2 argument centers on a lower court order that would require the Justice Department to give the House redacted parts of Special Counsel Robert Mueller’s report on Russian meddling in the 2016 election, along with underlying grand jury transcripts and exhibits.
The Supreme Court in July ensured that Democrats won’t get pre-election access to the material, blocking the order while the justices hear the appeal.
The House Judiciary Committee sought the records as part of its impeachment inquiry last year. Trump was impeached on different grounds by the Democratic-controlled House before being acquitted by the Republican-controlled Senate this year.
As with several cases this term, the Mueller fight could look very different should Biden win the Nov. 3 election. His Justice Department potentially could make the case moot by turning over the materials if he takes office in January.
Fannie and Freddie
The justices on Dec. 9 will consider whether investors can challenge the 2012 agreements that let the federal government collect hundreds of billions of dollars of Fannie Mae and Freddie Mac’s profits.
The Trump administration is appealing a ruling that would force the government to defend against a shareholder lawsuit. The investors say the agreements exceed the authority of the Federal Housing Finance Agency, which regulates the two mortgage giants.
A ruling in the investors’ favor would give them a chance to collect a massive settlement. Fannie and Freddie have paid more than $300 billion in dividends to the Treasury under the so-called net-worth sweep.
Businesses clashes
The business-heavy term will also feature:
- Google’s appeal of a ruling that the company improperly used Oracle’s copyrighted programming code in the Android operating system. Oracle says it’s entitled to at least $8.8 billion in damages. The case, set for argument Oct. 7, promises to reshape the legal protections for software code.
- A Dec. 1 case that could give companies a broader shield against lawsuits by victims of overseas atrocities. Nestle SA’s U.S. unit and Cargill Inc. are urging the court to end a suit that accuses them of complicity in the use of child slavery on cocoa farms in the Ivory Coast.
- A Dec. 8 argument on a lawsuit that accuses Facebook Inc. of sending unwanted text messages in violation of federal law. The case will clarify what types of technologies are covered by a 1991 law that bans unsolicited robocalls to mobile phones.
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