First Monday in October: SCOTUS expected to take a hard turn right in the culture wars

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“The Enemy of The People,” Senate Majority Leader “Moscow Mitch” McConnell, may be on the verge of realizing his years-long abuse of power in stacking the federal courts with right-wing ideologues who will deny overwhelming popular support for reforms and acts of Congress passed by their elected representatives, in the same way that conservative Supreme Courts reversed Reconstruction after the Civil War, reversed labor and consumer protection laws of the Progressive Era, and initially blocked many of the reforms of the New Deal. It is all about maintaining the anti-democratic privileged white male patriarchy of the Plutocracy.

McConnell’s right-wing culture warriors are licking their chops at the prospects for the 2019-2020 Supreme Court term that begins with the first Monday in October. The large number of divisive controversial decisions anticipated to be announced next June, only weeks before the major political parties’ conventions in July, are likely to set the agenda for the fall election in November. The Supreme Court itself will be a major issue.

Lawrence Hurley previews the Court’s term for Reuters:

The U.S. Supreme Court’s new term opens on Monday with the conservative majority in a position to take a more aggressive rightward turn on divisive issues including abortion, gay rights and gun control while also refereeing legal brawls involving President Donald Trump.

The court has moved to the right since Trump took office, with a 5-4 conservative majority that includes two justices he appointed: Brett Kavanaugh in 2018 and Neil Gorsuch in 2017.

“We will likely see the court move further and faster in a rightward direction,” said Irv Gornstein, executive director of Georgetown University Law Center’s Supreme Court Institute.

The justices are due to tackle a larger number of consequential cases than they did in their previous term, and they could end up producing more 5-4 rulings along ideological lines with the conservative justices on the winning end and the four liberal justices in dissent, according to court experts.

There were few such rulings in the term that ended in June. In one of the biggest rulings of the last term, conservative Chief Justice John Roberts joined the four liberals in blocking Trump from adding a citizenship question to the 2020 U.S. census that opponents called an effort to intimidate immigrants into not taking part in the decennial population count.

The nine justices on Tuesday will hear their first major case: on whether gay and transgender people are protected by a landmark federal civil rights law [The Civil Rights Act of 1964, as amended] that bars employment discrimination.

BOSTOCK V. CLAYTON COUNTY, GEORGIA; R.G. & G.R. HARRIS FUNERAL HOMES INC V. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; ALTITUDE EXPRESS INC V. ZARDA

Oral argument: Oct 8

Three connected cases on whether LGBT people are protected under a federal law that bars employment discrimination on the basis of sex.

The following week, the court will hear an appeal from the First Circuit that held: (1) the Territorial Clause does not displace the Appointments Clause in an unincorporated territory such as Puerto Rico; (2) Board Members are “Principal” “Officers of the United States” subject to the Appointments Clause; and (3) therefore, the process PROMESA provides for the appointment of Board Members is unconstitutional.

FINANCIAL OVERSIGHT BOARD FOR PUERTO RICO V. AURELIUS INVESTMENT LLC

Oral argument: Oct 15

Fight over whether appointments to Puerto Rico’s financial oversight board were lawful.

On Nov. 12, the court will weigh the legality of Trump’s move to end the DACA program created by his Democratic predecessor Barack Obama that protects from deportation hundreds of thousands of immigrants – mostly Hispanic young adults – who were brought into the United States illegally as children.

TRUMP V. NAACP, MCALEENAN V. VIDAL, DEPARTMENT OF HOMELAND SECURITY V. REGENTS OF THE UNIVERSITY OF CALIFORNIA

Oral argument: Nov 12

Three related cases on President Donald Trump’s attempt to wind down a program that protects so called “dreamer” immigrants from deportation.

The same day, the court will hear arguments in a border patrol civil rights case.

HERNANDEZ V. MESA

Oral argument: Nov 12

A civil rights case on whether the family of a Mexican boy killed by a U.S. border patrol agent while standing on the Mexican side of the U.S.-Mexico border can sue for damages.

The court has arguments scheduled for Dec. 2 in the first major gun rights case in decade, although the justices potentially could dismiss it because the New York City law being challenged by gun rights advocates has been amended since the litigation began. Other gun-related cases wait in the wings for possible action by the justices.

NEW YORK STATE RIFLE & PISTOL ASSOCIATION V. CITY OF NEW YORK

Oral argument: Dec 2

On gun rights, the Supreme Court has to decide whether it should toss a challenge to New York City’s restrictions on the transportation of handguns now that the city and state have amended their laws.

The Court will hear arguments in the case of whether the government had an obligation to pay private health insurers under the so-called “risk corridor” program that was meant to offset insurer losses in the early years of the ACA exchanges. That three-year program has ended, but health insurers argue HHS owes them more than $12 billion in unpaid funds.

MODA HEALTH PLAN V. U.S., MAINE COMMUNITY HEALTH OPTIONS V. U.S., LAND OF LINCOLN MUTUAL HEALTH INSURANCE CO V. U.S.

Oral argument: Dec 10

Health insurers seeking $12 billion from federal government over costs incurred via the Obamacare health law.

The court announced last week that it will take up the appeal regarding a Republican-backed abortion restriction enacted in Louisiana. Supreme Court to Hear Abortion Case From Louisiana. It raises the possibility of a ruling that curbs abortion rights, as hoped for by anti-abortion activists.

JUNE MEDICAL SERVICES LLC V. GEE

Oral argument: Not yet scheduled

Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

The Louisiana case concerns a challenge by an abortion clinic to state requirements that doctors who perform the procedure have a difficult-to-obtain arrangement known as “admitting privileges” with local hospitals. It is identical to a Texas law that the Supreme Court struck down in 2016, when conservative Justice Anthony Kennedy sided with the court’s liberals. Kennedy, who defended abortion rights in some pivotal rulings, retired last year and was replaced by Kavanaugh.

The court’s 2016 decision in the Texas case, Whole Woman’s Health v. Hellerstedt, said the admitting-privileges requirement “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

“If the court takes up the case they could use it as a vehicle to overrule their precedent from three years ago. That would be extraordinary. The only thing that’s different is the composition of the court,” said Julie Rikelman, a lawyer at the Center for Reproductive Rights, which supports abortion rights.

The court will also take up a so-called “religious rights” case from Montana, i.e., a school voucher program that could allow parents to use taxpayer funds to send children to religious schools.

ESPINOZA V. MONTANA DEPARTMENT OF REVENUE

Oral argument: Not yet scheduled

The legality of a Montana school voucher program that could allow parents to use taxpayer funds to send children to religious schools.

This case has an Arizona interest. Top Arizona Republicans lend support to U.S. Supreme Court case on tax credits for private schools:

Arizona Republicans are asking the U.S. Supreme Court to overturn a Montana Supreme Court ruling that ended the state’s tax credit scholarship program because it benefited religious schools.

House Speaker Rusty Bowers and Senate President Karen Fann filed a brief to the high court Tuesday on behalf of legislative leaders from Arizona, Montana and Nebraska, calling for the court to allow the inclusion of religious schools in school tax credit and voucher programs.

Arizona Attorney General Mark Brnovich and officials from other states filed a brief in the case, opposing the Montana court ruling, last week.

In their filing, Bowers, Fann and others argue that Blaine Amendments, which prohibit government aid to schools with religious affiliations, “are an unconstitutional infringement on the free exercise of religion protected by the First Amendment.”

The Blaine Amendment was a failed amendment to the U.S. Constitution in 1875 that would have prevented public money from going to religious schools. Even though the amendment failed, many states adopted the Blaine Amendment into their own constitutions.

The Arizona Constitution has such language, but courts here have so far interpreted it narrowly, according to the pro-school choice Institute for Justice.

“For too long, school choice opponents have used religious discrimination codified into law by the Blaine Amendments to deprive students of a chance at a better education. I hope the Supreme Court finally rights this wrong,” Bowers, R-Mesa, said in a released statement Tuesday.

Fann, R-Prescott, echoed Bowers and said the Montana court’s decision “is in direct conflict with the Arizona Supreme Court’s decision upholding a very similar school choice program.”

Dawn Penich-Thacker, a co-founder of Save our Schools Arizona, said the views of Fann, Bowers and Brnovich are “wildly out of line” with what most Arizonans think.

“Arizona voters do not want tax dollars to go to religious organizations,” Penich-Thacker said.

Penich-Thacker said that when Save our Schools was working on the voucher-limiting Proposition 305 campaign, people of both parties were “shocked and appalled” that tax dollars were going to religious organizations.

She said that those advocating for the programs are a “powerful but tiny minority,” and that 85% of Arizonans are still sending their children to public district schools. Another 10% of students attend public charter schools, she added.

Lawrence Hurley continues at Reuters:

The court during its new term also may be called upon to intervene on issues concerning Trump’s personal conduct in office, including potential legal fights over congressional subpoenas for material in the ongoing impeachment drama in the Democratic led House of Representatives.

In 1974, the Supreme Court played a decisive role in the investigation into President Richard Nixon during the Watergate scandal, ruling 8-0 in United States v. Nixon that Nixon had to hand over audio tapes recorded in the Oval Office. Facing impeachment, Nixon resigned days later.

Other disputes percolating in lower courts include lawsuits accusing Trump of violating anti-corruption provisions [Emoluments Clause] in the U.S. Constitution relating to his business interests. Two appeals courts have ruled on the issue so far, with one ruling for Trump and one against.

Trump is also fighting congressional subpoenas seeking his financial records from accounting firm Mazars LLP and two banks: Deutsche Bank AG and Capital One Financial Group.

Some legal experts have said that Trump, who has prevailed at the Supreme Court on issues such as his travel ban on people entering the United States from several Muslim-majority countries, may not fare so well on cases focusing on his personal activities.

In the House approves articles of impeachment – formal charges against Trump – Roberts would assume a daunting responsibility. As required under the Constitution, the chief justice would preside over a trial in the Senate on whether to remove Trump from office.

The health of the court’s oldest justice, Ruth Bader Ginsburg, also could be an issue in the court’s nine-month term, which will culminate with a flurry of major rulings next June during the heat of the 2020 U.S. presidential campaign.

The 86-year-old Ginsburg, a justice since 1993, underwent radiation therapy in August to treat a cancerous tumor on her pancreas after having two cancerous nodules in her left lung removed last December. Ginsburg has made public appearances since her latest treatment and has said she is “on my way to being very well.”

Ginsburg’s health concerns raise the possibility of Trump making another appointment to the Supreme Court. In addition, another liberal justice, Stephen Breyer, turned 81 in August.

Sorry, but NO. The “McConnell Rule” — no Supreme Court appointments during the final year of a president’s term because it is an election year — applies. McConnell’s unconstitutional abuse of power must apply equally to Trump as to Obama.

“I can safely predict that the new term will have a fair share of closely watched cases and I look forward to the challenges ahead,” Ginsburg said during a Sept. 12 appearance in Washington.

The women on the Supreme Court are likely likely to write some of the most powerful dissents in recent memory. Their dissents may eventually become the law in the future, as history has shown.

The conservative corruption of the courts cannot last forever. It will eventually end.