WASHINGTON – The Supreme Court tries to stay out of politics, but it begins its 2020 term Monday as both a divisive issue in the presidential election and the potential arbiter of it.
Shorthanded and still mourning the death last month of Associate Justice Ruth Bader Ginsburg, the eight remaining justices will carry on their work amid a partisan firestorm over her likely successor.
At the same time, they will face a flurry of emergency petitions from Democrats and Republicans over the way mail-in ballots are distributed, delivered and counted in an election President Donald Trump claims – without proof – has been rigged against him.
Not since 1991 has the court faced an ideological shift as dramatic as the one federal appeals court Judge Amy Coney Barrettrepresents. Not since 2000 has it faced the prospect of interceding so deeply in a presidential election.
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And the Senate confirmation fight, which will drown out the more mundane docket of cases the justices will consider by phone because of the COVID-19 pandemic, comes with its own rancorous history. Republicans are determined to confirm Trump’s nominee days before the election after blocking President Barack Obama’s similar effort in 2016.
The ideological, political and procedural firestorms will make it difficult for the court to do what Chief Justice John Roberts strives to do: call balls and strikes, and steer clear of politics.
“The last thing they want is for the court to be seen as even more partisan,” says David Strauss, who heads the Supreme Court and appellate clinic at the University of Chicago Law School. “That’s the worst possible outcome.”
The political controversies at the high court’s doorstep threaten its standing as the most trusted branch of government. The executive and legislative branches, battling over the pandemic, a foundering economy, racial inequities, immigration and health care, fare much worse.
The high court’s year began with Roberts presiding over the president’s impeachment trial in the Senate and included landmark rulings denying Trump the immunity he sought to protect his tax returns and financial records from investigation. It could end with the justices playing a crucial role in the presidential and congressional elections.
But when it comes to the federal judiciary, Trump may have the last laugh. Having named two Supreme Court justices and more than 200 lower federal court judges in his first term already, he is on the verge of adding a third justice: a deeply conservative, 48-year-old judge and Notre Dame law professor from Indiana who could reshape the court for decades to come.
“On the whole, we’re going to see a considerable and perhaps quite rapid shift to the right,” said Orin Kerr, a University of California-Berkeley School of Law professor, during a recent panel discussion sponsored by the conservative Federalist Society. With Barrett replacing Ginsburg, he said, “That’s a very conservative court.”
To be sure, the high court has been conservative for decades. But the tilt has been somewhat tenuous, moderated by justices in the middle such as Sandra Day O’Connor, Anthony Kennedy and, most recently, Roberts himself.
Ginsburg’s death occurred just in time for Republicans to change that. For much of the past year, her battle with cancer privately riveted liberals as well as conservatives, her every medical relapse and recovery hitting the headlines.
Former U.S. solicitor general Paul Clement has argued more than 100 Supreme Court cases, but he always will remember the most recent one, held by telephone while Ginsburg was in the hospital.
“What an image that somebody was so dedicated to her craft and her role that she literally was asking questions from her hospital bed,” Clement recalled at a Supreme Court conference sponsored by William & Mary Law School.
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Trump wasted no time with procedural formalities. The White House contacted Barrett the day after Ginsburg’s death, and two days later the federal judge and mother of seven was interviewed and offered the nomination.
All but two Senate Republicans quickly endorsed moving ahead with confirmation, all but assuring she wil join the court in time for oral arguments in November. If so, one of her first cases will determine whether religious groups can be exempt from anti-discrimination laws, followed closely by a third major threat to the Affordable Care Act.
In that case, Ginsburg’s death makes what had appeared to be the health care law’s likely survival a bit more precarious. Republicans who have tried for a decade to kill the law could have Barrett on their side. Democrats and their liberal interest group allies, meanwhile, are trying to use the threat to their advantage in the confirmation battle.
For her part, Barrett insists she would not impose her personal convictions on the law.
“The president has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us,” she said in a Rose Garden ceremony Sept. 26. “If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake.”
That’s of little solace to abortion rights advocates who fear that Barrett, who is on record opposing abortion personally, would help the court uphold new state restrictions. Longer term, they fear the court could overrule its 1973 Roe v. Wade precedent legalizing abortion nationwide.
“I’ve never been more afraid for the prospects ahead,” says Louise Melling, deputy legal director of the American Civil Liberties Union.
Counting every ballot
Abortion rights survived the recently concluded Supreme Court term intact, along with other liberal causes such as LGBTQ rights and protecting from deportation undocumented immigrants brought to the U.S. as children. In each case, Roberts joined the liberal wing.
This term, a similar coalition is considered likely to save most of the Affordable Care Act, even without Ginsburg. States governed by Republicans want the entire law struck down because Congress in 2017 eliminated the tax used to enforce its mandate that most people purchase insurance. But Roberts and Associate Justice Brett Kavanaugh wrote separate opinions last term that allowed statutes to stand after severing problematic provisions.
It’s far more likely that the court’s 2020 term will be known for the many voting rights cases headed its way. The court has been involved in the election since April, when it ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date.
More than 300 lawsuits have been filed, in nearly every state, thanks largely to problems associated with COVID-19 and the expansion of voting by mail. Republicans, including President Donald Trump’s reelection campaign, want to limit mail-in voting while Democrats push for greater opportunities.
Any day now, the justices are expected to decide if Pennsylvania can count mail-in ballots for three days after Election Day. A similar lawsuit in Wisconsin is headed toward the high court. Both states are crucial battlegrounds in Trump’s battle against former Democratic vice president Joe Biden.
Before, during and after Election Day, “It’s easy to imagine the campaigns fighting over every absentee ballot,” says Richard Pildes, a leading election law expert at New York University School of Law.
Trump has raised that prospect as reason for the Senate to confirm Barrett by Election Day. After privately offering her the nomination but before announcing it, Trump said, “I think this will end up in the Supreme Court, and I think it’s very important we have nine justices.”
That has led some liberal interest groups to argue that if she is confirmed, Barrett should recuse herself from considering election-related cases. Judges and justices generally remove themselves from a case only for more personal reasons, such as family interests or financial investments.
“Trump has put Barrett in a very difficult position,” says Richard Hasen, an election law expert at the University of California-Irvine School of Law. “Now her objectivity in any Trump v. Biden case could reasonably be called into question.”
Packing the court
Once the election and subsequent lawsuits are history, the justices will hope to sink back into relative obscurity. But that’s unlikely to happen.
If they emerge from the election with Biden in the White House and majorities in both houses of Congress, Democrats could try something last attempted by President Franklin Roosevelt in the 1930s: adding seats to the nation’s highest bench. That would allow them to install liberal justices as a counterweight to the court’s conservative majority.
Ginsburg’s death “makes court-packing by the Democrats more likely than it’s ever been,” Strauss says. And that could lead Republicans, if they later regain power, to fight court-packing with more packing.
Under that scenario, “the Supreme Court starts to look ridiculous,” Clement said at the William & Mary conference. “They’ve got to get a new bench.”