First Monday In October: New Controversial SCOTUS Term Begins

Supreme Court Justices have spent their break trying to convince Americans that they are not political, that they are ethereal beings who are above it all. Also, trying to convince themselves that their shit doesn’t stink.

It has not gone well, because Americans know that they are being lied to and played for fools.

In the most recent poll, released Sept. 23, the court’s approval rating was down to 40 percent — the lowest since Gallup started testing the question in 2000. A new high — 37 percent — said the court was too conservative, up five points from just a year ago.

As Ruth Marcus says in The Supreme Court’s crisis of legitimacy:

The [Supreme Court] begins its 2021 term at a most perilous time — perilous not just for the country but for the Supreme Court itself.

The threat is to the court’s legitimacy, the source of its authority. The existence of the threat has manifested itself in the remarkable fact that three sitting justices — Stephen G. Breyer, Amy Coney Barrett and Clarence Thomas — have recently felt the need to assert that the justices are not, in Barrett’s tart words, “a bunch of partisan hacks.” Chiming in, Justice Samuel A. Alito Jr. on Thursday warned against “unprecedented efforts to intimidate the court or damage it as an independent institution.”

Me thinks they doth protest too much.

[A] court whose ideological balance is out of line with that of the country can find itself in dangerous territory, something to keep in mind as the court embarks on a term that already includes major cases that could result in further restrictions on abortion rights and gun regulation and might also sound the death knell for affirmative action in higher education.

We are a closely divided country, but we have a court that is not at all closely divided — not on the cases that matter most.

[T]he conservatives are much further to the right than the remaining liberals are to the left. This is the most conservative court since the 1930s, and, uniquely in U.S. history, one whose ideological blocs align precisely with the party of the president who appointed them.

This systemic and entrenched disconnect between public opinion and the judicial philosophy of the court’s majority creates a problem when it comes to assuring that the court’s decisions are accepted and followed.

As Breyer points out in his new book, the court has no independent authority to enforce its rulings; that depends on public acceptance.

The radical Republican Trump/McConnell Supreme Court are preparing to cement a permanent GQP tyranny of the minority, and hasten the end of American democracy, for which the Roberts Court has been laying the foundation since 2005.

Elie Mystal of The Nation writes, This Supreme Court Term, Conservatives Have One Aim: Stop Progress:

On the first Monday in October, the Supreme Court, the most powerful government body controlled by conservatives, returns to work. Democrats have the White House and both chambers of Congress; Republicans, who have lost the popular vote in seven of the last eight presidential elections, are currently confined to the unelected, unaccountable branch of government [i.e., the Supreme Court.]

However, because [the Supreme Court] claims sole authority to nullify the actions of the other two branches, Republicans can do a lot of damage. Indeed, the ability to stop the actions of branches that Republicans cannot control without voter suppression is a big reason Senator Mitch McConnell spent so much energy stacking the Supreme Court. From stealing a seat from Barack Obama in 2016 to giving a third appointment to Donald Trump in 2020, McConnell has been playing the long game: wresting control of the one institution that is immune to the popular will. The former Senate majority leader never needed the MAGA coup to succeed. Instead, he had the court, which is now poised to do what a mob of white terrorists never could: Stop progress.

This term, we will see conservatives celebrate the achievement of two long-sought goals they could not accomplish through electoral politics. We will see broad conservative agreement that women should be treated as second-class citizens, reduced to the status of incubators with mouth parts, when the court hears the most direct challenge to abortion rights in a generation. And we will see broad conservative agreement that guns have more rights than children.

There will also be a bunch of cases that we don’t know about yet, conducted as part of the Supreme Court’s “shadow docket.” This consists of cases that are decided through an emergency process that allows the court to avoid holding full public hearings and issuing detailed opinions. No surprise, the conservatives have frequently employed it to decide the most controversial and partisan cases. The court is now fully owned by these conservatives — six justices to three — and they aren’t about to pass up this opportunity to win the culture wars they were sent to fight.

[T]hey all agree that organized labor should be disempowered, that voting should remain a largely white privilege, and that religious groups should be able to stop LGBTQ people from adopting children. That’s not theory; that’s the upshot of three decisions the conservatives hung together to make last term. The six conservatives agree on the outcomes; they disagree only on the best way to go about their awful work of reversing the gains of the civil rights and gay rights movements and dismantling the social safety net. A wolf and a leopard have different hunting methods, but they will both eat faces if they’re given the chance.

[To] be clear, it’s not that every case will be decided 6-3; it’s that all the cases will be argued on conservative terms, over the issues conservatives care about, and decided based on what conservatives think they can get away with.

And apparently, elected Democrats, both in Congress and the White House, are cool with that. They have accepted conservative control of the courts. The Biden administration took the energy and passion of its base for court reform and sent it off to a commission of law professors to die. Congress, instead of mitigating the worst impulses of the courts by passing legislation to protect voting rights or reproductive rights, passes nothing because the Senate clings to the filibuster.

Conservatives have won their battle to control the federal judiciary. This term, the country will pay the consequences.

Supreme Court reporter Ian Milhiser explains the 9 high-stakes issues the Supreme Court will take up this coming term:

For four decades, anti-abortion activists have dreamed of the day when the Supreme Court would overrule Roe v. Wade. That day could be just months away, as the Court will hear a case this winter asking it to destroy Roe.

The National Rifle Association, like other, even more strident gun rights groups, spent those decades dreaming of an expansive Second Amendment that sweeps even the most venerable firearms regulations into the trash bin. This fall, the Court will hear a challenge to a 108-year-old law laying out who may obtain a license to carry a firearm in New York.

A more obscure issue, but one that could have even more sweeping consequences, is the question of when federal agencies — acting pursuant to a statute enacted by Congress — may regulate private businesses and individuals. The conservative Federalist Society has long obsessed over plans to strip federal agencies of this regulatory power. This month, right-wing groups flooded the Supreme Court with briefs asking the justices to overrule a seminal precedent preventing judges from sabotaging agencies such as the Environmental Protection Agency.

It remains to be seen whether the Supreme Court, with its 6-3 conservative majority, will make all these groups’ dreams come true. But Republican advocacy organizations of all stripes appear convinced that now is the time to shoot for the moon, and so these issues — along with a host of others ranging from anti-discrimination law to partisan gerrymandering — are on the docket this coming Supreme Court term, which starts Monday, October 4.

By the time the justices head off for their next summer break, the Court may well have revolutionized much of American law — and turned many of the Republican Party’s fondest [culture war] wishes into reality.

1) Roe v. Wade could be ended

The parties in Dobbs v. Jackson Women’s Health Organization, which the Court will hear in early December, agree on just one thing: The case is an existential threat to Roe v. Wade.

Dobbs involves a Mississippi law that bans abortions after 15 weeks of pregnancy. (Notably, this 15-week clock starts on “the first day of the last menstrual period of the pregnant woman” — meaning that, in practice, the law functions as something much closer to a 13-week abortion ban.)

Technically, the justices say they took up this case to answer a slightly narrower question than whether the constitutional right to an abortion should be eliminated in its entirety. But Mississippi spends the lion’s share of its brief arguing that Roe should be overruled and the constitutional right to an abortion eliminated.

Meanwhile, the abortion providers challenging the law argue that there is no practical difference between a decision repealing Roe and a superficially narrower decision permitting states to ban abortions prior to viability. According to their brief, “Any abandonment of viability would be no different than overruling Casey and Roe entirely.”

The 15th week of pregnancy is well before viability. According to a paper published in the journal Pediatrics in 2019, “Infants born at 22 weeks’ gestation can achieve survival rates of 25% to 50%.”

For most [Republican] justices, the question of whether the Constitution protects a right to abortion ceased to have anything to do with legal doctrines and Latin maxims such as stare decisis — the doctrine that courts should generally be bound by their prior decisions —long ago.

The bottom line is that Republican elected officials generally oppose abortion, Democrats typically support the right to have one, and six of the nine justices were appointed by Republican presidents. Five of those justices already allowed a Texas law that effectively bans abortions after six weeks to take effect.

Barring extraordinary events, the right to an abortion is probably doomed.

2) The Court could eviscerate America’s gun laws

Like Dobbs, the most salient factor in New York State Rifle & Pistol Association Inc. v. Bruen — a challenge to a New York state law requiring anyone who wishes to carry a handgun in public to demonstrate “proper cause” to obtain a license — isn’t the legal arguments in the case. It is the identity of the justices who will hear it.

For many years, the Supreme Court read the Second Amendment narrowly. As the Court explained in United States v. Miller (1939), the “obvious purpose” of this amendment was to “render possible the effectiveness” of militias, not to permit individuals to carry guns for other purposes.

All of that changed in District of Columbia v. Heller (2008), which held for the first time that the Second Amendment protects an individual right to bear arms.

That said, the Court’s opinion in Heller includes a great deal of language limiting the scope of gun rights. For example, it suggests that bans on “carrying concealed weapons” are lawful, as are laws banning “the possession of firearms by felons and the mentally ill,” “the carrying of firearms in sensitive places such as schools and government buildings,” or “the carrying of ‘dangerous and unusual weapons.’”

This mitigating language was inserted into the Heller opinion at Justice Anthony Kennedy’s insistence — Heller was a 5-4 decision, so the other conservatives in the majority needed Kennedy’s vote to avoid winding up in dissent.

But Kennedy is now retired, and his replacement, Justice Brett Kavanaugh, is a hard-liner on the Second Amendment even by the standards of other Republican-appointed judges. In a 2011 dissenting opinion, for example, Kavanaugh disagreed with two very conservative judges who upheld much of a District of Columbia gun law. Kavanaugh would have struck down the law’s ban on semiautomatic assault weapons and its requirement that gun owners register their firearms.

Similarly, the late Justice Ruth Bader Ginsburg, who dissented in Heller, was replaced by Justice Amy Coney Barrett, who also takes an unusually expansive view of the Second Amendment. Although Heller indicates that “longstanding prohibitions on the possession of firearms by felons and the mentally ill” are constitutional, Barrett claimed in a 2019 dissent that the rule should apply “only to people who are dangerous,” not to all people with felony convictions.

So, while it is not entirely clear just how much the Court will expand the Second Amendment, it is very likely it will hand down a new rule that could endanger wide swaths of state and federal laws regulating firearms.

3) The Court could seize significant new authority to veto federal policies

American Hospital Association v. Becerra is a testament to how the Court’s most consequential decisions often come from cases that are complex enough to make your brain bleed.

The specific issue in American Hospital Association is whether a 2017 regulation changing the amount Medicare pays for certain drugs is lawful. Under the pre-2017 rule, Medicare reimbursed hospitals for the full price of these drugs, even though certain hospitals that treat low-income and underserved populations may purchase them at a significant price break.

Under the new rule, Medicare reimburses hospitals that buy discounted drugs at a lower rate. (It should be noted that many low-income patients also paid higher copays under the pre-2017 rule, so there are plausible arguments that either policy leads to better outcomes for low-income people.)

The most important question in American Hospital Association, however, stretches far beyond Medicare to touch on a fundamental issue: When Congress gives federal agencies the power to set policy, how much leeway do those agencies enjoy? It’s a consequential question that bears on situations as diverse as whether the EPA can fight climate change, or whether the Department of Labor can encourage workers to get vaccinated against Covid-19.

Numerous federal laws lay out a broad policy. Somewhat simplified examples of such policies are “power plants should use the best available technology to reduce emissions” or “Medicare should pay a reasonable market rate for prescriptions.” But such laws then empower a federal agency to implement those policies through binding regulations that can be updated as technology evolves or as drug prices fluctuate.

Historically, the Supreme Court warned judges to be very reluctant to second-guess federal agencies when they issue such regulations. As the Court explained in Chevron USA Inc. v. Natural Resources Defense Council (1984), specialized agencies have far more policy expertise than judges. What’s more, federal agencies are accountable to an elected president, while federal judges are unelected and lack the democratic legitimacy that comes from an electoral mandate.

The Court’s right flank, however, is increasingly hostile to agencies exercising this kind of power. Indeed, a majority of this Court has, at various times, suggested that the judiciary should have an effective veto power over all federal regulations.

The plaintiffs in American Hospital Association primarily argue that federal law unambiguously prohibits the post-2017 reimbursement rates. And everyone agrees that if the relevant federal statute is, in fact, unambiguous, then those rates must be struck down. Chevron held that when a law permitting an agency to regulate is ambiguous, courts should defer to the agency’s interpretation of the statute so long as it is reasonable.

But the Court was also flooded with amicus briefs from conservative advocacy groups claiming that Chevron should be overruled. If that happens, it would be an earthquake.

Chevron is one of the foundational precedents governing federal regulatory agencies, and one of the most cited cases in the Court’s history. Overruling it would be a clear sign that the Court plans to aggrandize policymaking authority within itself.

4) The Court is likely to carve a new hole into the wall between church and state

The state of Maine’s public school system is more than a little bizarre.

Maine divides itself into 260 “school administrative units,” more than half of which do not have their own public secondary school. Instead, they either contract with a nearby public or private school to educate their school-age residents, or they agree to pay private school tuition for such residents. Significantly, these private school vouchers can only be used to pay tuition at a “nonsectarian” school.

Only a few years ago, Maine’s exclusion for religious schools would have been completely unproblematic, at least as a constitutional matter. The courts turned aside multiple lawsuits seeking to force Maine to pay for religious education. The most recent of these suits, Carson v. Makin, is currently before the justices.

Carson, however, arrives at the Court shortly after its 5-4 decision in Espinoza v. Montana Department of Revenue (2020), which held that “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Given Espinoza, it’s hard to see how Maine’s ban on state funding for religious education survives. That said, a federal appeals court did uphold that ban.

The thrust of the lower court’s opinion is that Espinoza prohibits discrimination only on the basis of religious “status” (meaning a school identifies with a particular faith), and does not ban state funding for religious “use” (meaning the school actively teaches religious doctrine). Significantly, Maine does not prohibit private schools affiliated with a church or other religious institution from receiving payments from the state. Only schools with overly religious curriculums are excluded.

If the Supreme Court rejects this distinction and orders Maine to fund religious schools, Carson will also reveal just how much the Court’s decisions can turn on its membership, rather than on the strength of either party’s legal arguments.

By coincidence, one of the judges who heard this case in the lower court was retired Justice David Souter, a critic of the Court’s rightward turn in religion cases (retired justices occasionally hear cases in lower courts). If the Court were now dominated by justices who share Souter’s views, the Carson plaintiffs would have no chance of prevailing.

5) The Court will reveal whether its sympathy for “religious liberty” claims extends to death row

A little more than two years ago, in Dunn v. Ray (2019), the Court handed down a widely criticized decision holding that a Muslim death row inmate could not have an imam present during his execution.

Significantly, the state of Alabama, which executed this inmate, permitted Christian inmates to have a spiritual adviser present during their execution, but not Muslims, a clear violation of the Constitution’s prohibition on religious discrimination. As Justice Elena Kagan explained in her dissenting opinion in Ray, “‘the clearest command of the Establishment Clause,’ this Court has held, ‘is that one religious denomination cannot be officially preferred over another.’”

Ray sparked a bipartisan backlash (a piece in the conservative National Review labeled the decision a “grave violation of the First Amendment”), and it raised serious questions about just how far the Roberts Court’s commitment to religious freedom extended beyond conservative Christians.

Last February, the Court signaled in a different case, Dunn v. Smith, that it was backing away from the decision in Ray.

Then the Court agreed to hear Ramirez v. Collier, a case involving a Texas inmate who is allowed to have a pastor present during his execution — but the pastor may neither lay hands on the dying man nor audibly pray.

There’s a good chance that Ramirez will reject Ray and allow death row inmates of all faiths to have a spiritual adviser present during their executions. It is less clear whether the Court will permit clergy to touch a person who is being executed or speak during the execution.

6) The Court could further dismantle anti-discrimination laws

CVS Pharmacy Inc. v. Doe involves a difficult dispute over just how much protection the Affordable Care Act gives to people with disabilities. The plaintiffs in this case are HIV-positive individuals who claim that their health plan (or, more specifically, the company that manages prescription drug benefits for their health insurer) effectively prevents them from receiving adequate care for their condition.

Because the HIV virus continuously mutates, HIV-positive patients frequently need to change their medications. New medications can mean new side effects that need to be managed; they can also have negative interactions with other medications the patient already takes.

The CVS Pharmacy plaintiffs’ health plan requires them to use a specific specialty pharmacist to obtain some drugs, while simultaneously requiring many of these plaintiffs to obtain non-specialty drugs at other pharmacies (“specialty” pharmacies typically dispense drugs that are unusually expensive or have particularly difficult handling requirements). The plaintiffs fear that requiring them to obtain drugs from two different sources “makes it difficult, if not impossible, for CVS Caremark to track potentially life-threatening drug interactions.”

The specific question before the Court in CVS Pharmacy is whether a provision of the ACA that prohibits many health insurers and providers from discriminating against people with disabilities permits “disparate impact” suits against those insurers and providers. These suits allow plaintiffs to challenge practices that impose outsize burdens on people with disabilities, even if those practices do not deny health benefits to such individuals explicitly.

The Court’s conservative majority tends to be hostile toward disparate impact suits in other contexts. In Brnovich v. Democratic National Committee (2021), for example, all six Republican appointees voted to rewrite the Voting Rights Act to effectively neutralize disparate impact suits alleging race discrimination in elections.

Similarly, in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project (2015), the four most conservative justices voted to eliminate disparate impact suits brought by plaintiffs alleging race discrimination in housing. Justices Kennedy and Ginsburg, who voted with the majority in Inclusive Communities, have since been replaced by justices who are well to their right.

7) The Court will decide whether Puerto Ricans can be denied benefits

People born in Puerto Rico are citizens of the United States, even though the island neither votes in presidential elections nor sends voting representatives to Congress. Additionally, while a program known as “Supplemental Security Income” (SSI) provides financial assistance to low-income older, blind, and disabled people living in the 50 states, as well as in DC and the Northern Mariana Islands, residents of Puerto Rico may not receive SSI benefits.

Which brings us to United States v. Vaello-Madero, an almost gratuitously cruel case brought by the federal government.

José Luis Vaello-Madero is an American who lived in New York for nearly three decades. During that period, he developed serious health conditions, and started receiving SSI benefits in 2012. He moved to Puerto Rico in 2013, apparently unaware that his relocation rendered him ineligible for SSI.

Nevertheless, the Social Security Administration, which administers SSI benefits, did not discover that Vaello-Madero had moved until 2016. When that happened, the government cut off his benefits and sued him for $28,081 — the amount of SSI benefits Vaello-Madero received while living in Puerto Rico.

The crux of Vaello-Madero’s lawsuit is that, by discriminating against Puerto Rican residents, SSI violates the Constitution’s guarantee that no one shall be denied the “equal protection of the laws.” Realistically, however, he faces an uphill battle under existing law. In Harris v. Rosario (1980), the Supreme Court held that the United States “may treat Puerto Rico differently from States so long as there is a rational basis for its actions.”

The term “rational basis” ordinarily requires courts to uphold a law. As the Court held in FCC v. Beach Communications Inc. (1993), laws subject to this extremely deferential standard “may be based on rational speculation unsupported by evidence or empirical data.”

The federal government, for what it’s worth, claims that denying SSI benefits to Puerto Rican residents is rational because many Puerto Ricans do not pay federal income taxes, as well as because providing these benefits to residents of the island would cost too much. That’s not a particularly persuasive justification for the exclusion, but it is probably enough to survive rational basis review.

That said, an appeals court did rule in Vaello-Madero’s favor. Among other things, it noted that many low-income Americans who do not live in Puerto Rico do not pay federal income taxes. Indeed, as the lower court noted, “any individual eligible for SSI benefits almost by definition earns too little to be paying federal income taxes.”

8) The Court will decide whether the US can hide evidence that it tortured people

Zayn al-Abidin Muhammad Husayn (often referred to as “Abu Zubaydah”) is a Palestinian man currently being held at the US military prison at Guantanamo Bay, Cuba. The US government believed him to be a high-level al-Qaeda operative; following his 2002 capture in the Palestine territories, CIA officials sent him to several so-called black sites, where he was tortured. One of these secret torture sites, where Abu Zubaydah was held for several months in 2002 and 2003, is in Poland.

You may notice that the word “allegedly” does not appear at all in the previous paragraph. That is because the basic facts of Abu Zubaydah’s detention and torture in Poland aren’t seriously contested. Many of these facts have been reported by the press, and the European Court on Human Rights determined in 2015 that Abu Zubaydah was detained and tortured at the CIA facility in Poland. In addition, a 2014 report by the Senate Intelligence Committee confirmed that he was tortured.

Nevertheless, in United States v. Zubaydah, the CIA claims these facts are “state secrets” and therefore cannot be disclosed to Polish prosecutors investigating which Polish nationals and government officials were complicit in Abu Zubaydah’s torture.

The Supreme Court established in United States v. Reynolds (1953) that, in cases where “compulsion of the evidence will expose military matters,” the requested evidence “should not be divulged” for reasons of national security. A lower appeals court determined that some of the information sought in the Zubaydah case, such as “the identities of foreign nationals who work with the CIA,” should not be disclosed because doing so “risks damaging the intelligence relationship [between the United States and Poland] and compromising current and future counterterrorism operations.”

At the same time, the appeals court also recognized that “in order to be a ‘state secret,’ a fact must first be a ‘secret.’” And thus the court handed down a nuanced decision holding that the CIA may need to turn over information — including “the fact that the CIA operated a detention facility in Poland in the early 2000s; information about the use of interrogation techniques and conditions of confinement in that detention facility; and details of Abu Zubaydah’s treatment there” — that is already largely available.

Yet the Justice Department is now asking the Supreme Court to prevent even this limited degree of disclosure, claiming that courts should show “a particularly high degree of deference to the CIA Director’s assessment” that certain information should remain secret when that information is sought in a “foreign proceeding that is investigating alleged clandestine activities of the CIA abroad.”

9) The Court could make partisan gerrymandering even worse

While the Court has not yet announced that it will hear a case involving partisan gerrymandering this upcoming term, it is likely the justices will weigh in on this issue soon. State legislatures are currently drawing maps that will be used in the next decade’s worth of federal and state elections, and it is inevitable that some of these maps will be litigated.

In October 2020, four members of the Supreme Court endorsed [the “Independent State Legislatures doctrine”] that state legislatures should have broad (and, potentially, unchecked) authority to determine how federal elections are conducted in their state: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Neil Gorsuch wrote in a concurring opinion.

Gaby Goldstein and David Daley warn, Beware the “Independent State Legislatures doctrine” — it could checkmate democracy.

Taken to its logical extreme, this position could prohibit Democratic governors from vetoing congressional maps drawn by Republican state legislatures. It could also prevent state supreme courts from enforcing limits on gerrymandering imposed by their state’s constitution, as well as forbid states from using nonpartisan redistricting commissions [e.g., Arizona] to draw congressional lines.

It remains to be seen whether the Court will go this far. Notably, Barrett was not on the Court when Gorsuch laid out his position, and her views on the question of whether state legislatures can ignore other political actors within their state are unknown.

Still, there is tremendous risk that a Court — one that has historically been sanguine about partisan gerrymandering and hostile toward plaintiffs in voting rights cases — will give Republican state legislatures expanded authority to draw gerrymandered congressional maps.