Justice Ruth Bader Ginsburg’s death will have an immediate impact on a number of matters before the U.S. Supreme Court.
Election Law Challenges
Litigation over election issues related to COVID-19 has grown to a list of 250 cases. The Republican Party and President Donald Trump’s reelection campaign have demanded limits and restrictions, while Democrats have pushed to expand voting opportunities to make voting easier and covid-19 safe.
The few lawsuits that have had emergency applications before the U.S. Supreme Court so far have demonstrated a court disinclined to allow lower courts to enjoin a variety of voter suppression tactics. As the Washington Post reported in late July, the court’s more conservative justices so far have largely joined together to rule in favor of state limits on mail-in voting and other in-person election activities. The court’s liberal justices, voted in favor of leaving in place court orders that allowed more flexible election practices.
This should not be surprising in a court headed by Chief Justice John Roberts. Chief Justice Roberts’s lifelong crusade against voting rights, explained by Ian Millhiser.
The current ideological split on the court is now 5-3 after the death of Justice Ruth Bader Ginsburg. The three liberal justices would now need two conservative justices to take any emergency action. If only one of the conservative justices sided with the three liberal justices, when the justices divide 4-4 in a case the lower court ruling remains in place. Zoe Tillman explains, Here’s How The Supreme Court Will Function With Eight Justices Leading Up To The Election:
Election-related cases are most likely to reach the Supreme Court in the coming weeks as emergency applications, where the losing party in a case asks the justices to immediately pause a ruling — known as a “stay” — while an appeal moves forward. Each justice is assigned to handle emergency applications from each of the country’s 13 circuit courts. Under normal circumstances, they rule on those requests alone.
But a justice can refer an emergency application to the full court to decide, which typically happens in high-profile or especially contentious cases. When that happens, it takes a majority of the justices to vote to grant a stay and stop a lower court ruling from going into effect.
If there’s a 4–4 decision in Ginsburg’s absence, the request is denied. That would leave whatever lower court ruling was at issue in place.
As election law expert Rick Hasen says:
A few of these lawsuits already have reached the Supreme Court on an emergency basis, and more are likely to do so in the coming weeks. The justices’ rulings in these cases could determine how – or whether – millions of Americans vote this fall.
The “Purcell principle,” from Purcell v. Gonzalez (9th Cir. 2006), a presumption against last-minute changes to election procedures, will be relied upon by the court shortly. Lower court rulings may be decisive ahead of the election as a result.
The Court’s 2020-21 Term
A week after election day, court will hear oral argument in the case brought by Republican Attorneys General and joined by the Trump administration to overturn the Affordable Care Act aka “Obamacare” in its entirety:
California v. Texas and Texas v. California (consolidated for one hour of argument on Nov. 10): Whether the Affordable Care Act’s requirement that virtually every American obtain health insurance is constitutional and, if not, whether the rest of the ACA can survive.
And in December the court will hear the House challenge to the Justice Department withholding secret grand-jury materials from Robert Mueller’s Russia investigation:
Department of Justice v. House Committee on the Judiciary (Dec. 2): In dispute over access to secret grand jury materials from the Mueller investigation, whether an impeachment trial is a “judicial proceeding” for purposes of an exception to the general rule of grand jury secrecy.
This is where a 4-4 tie vote can present a problem for the court. As Zoe Tillman explains:
The next Supreme Court term begins in October, and there are already several blockbuster cases scheduled for arguments. On Nov. 10, the court will hear the next big fight over the future of the Affordable Care Act. On Dec. 2, it will hear arguments in House Democrats’ fight with the Justice Department over access to still-secret grand jury materials from former special counsel Robert Mueller’s investigation.
The court can hear arguments and decide cases with only eight justices. But Stephen Vladeck, a professor at the University of Texas School of Law and Supreme Court litigator, said that when it appears the court is going to tie, especially in a high-profile case, they historically have held off issuing a decision until a ninth justice is confirmed and then rescheduled another round of arguments; the court usually doesn’t offer any explanation when it puts a case back on the calendar.
If the justices decide to delay rulings in cases argued this fall until a nominee is confirmed for Ginsburg’s seat, it means a decision might not come until well into 2021.
It is presumed by many legal experts that Chief Justice John Roberts will again vote to uphold the Affordable Care Act, which could present a 4-4 tie vote, That would result in the 5th Circuit Court of Appeals decision upholding the decision of the conservative activist federal trial court judge in Texas striking down the Affordable Care Act to stand. I don’t see the Chief Justice going this route.
Jonathan Cohn speculates What Ruth Bader Ginsburg’s Death Could Mean For The Obamacare Hearing Nov. 10:
One is that the Affordable Care Act survives without much fuss, the program goes on as it is, and nobody loses coverage. This lawsuit is so weak that even conservative legal experts who supported previous challenges think it has no basis. Several or all conservative justices might join liberals in rejecting it.
The Supreme Court has already rejected two previous challenges to the Affordable Care Act: the 2012 case and one that it heard in 2015. Legal scholars are in wide agreement that this new case is significantly thinner than either one of those.
But the lawsuit has already prevailed in two lower court cases, both times because Republican-appointed judges agreed with its rationale. And without Ginsburg, who was sure to uphold the law, the odds of the Affordable Care Act surviving go down.
That is true even if Republicans don’t manage to fill her seat before the hearing. One possibility now in play is a four-four tie. If that happens, two legal experts told HuffPost, then the Affordable Care Act could become something like a zombie statute ― one that is unconstitutional but that continues to operate while litigation continues before lower court judges.
“This should make people think again before (once again) saying that an absolutely ludicrous argument had no chance of destroying the ACA in SCOTUS,” Leah Litman, a University of Michigan law professor and former Supreme Court clerk, told HuffPost.
Or more likely:
The court could, for example, hear the case, be headed for a 4-4 tie and call for a rehearing with nine justices so that it could deliver a more definitive ruling. Roberts could also push it back on the schedule.
Vice President Joe Biden’s campaign is linking the Supreme Court vacancy to the coronavirus pandemic and the future of the Affordable Care Act. Joe Biden’s Court Vacancy Plan: More Talk of Health Care and the Pandemic:
[C]onfronted with a moment that many believe will upend the 2020 election — the death of Justice Ruth Bader Ginsburg and the prospect of a bitter Supreme Court confirmation battle — Mr. Biden’s campaign is sticking to what it believes is a winning strategy. Campaign aides said Saturday they would seek to link the court vacancy to the health emergency gripping the country and the future of health care in America.
[T]he Biden campaign, at least at the start, plans to chiefly focus on protecting the Affordable Care Act and its popular guarantee of coverage for people with pre-existing conditions.
Arguments in a seminal case that could determine the future of the health care law are set for a week after Election Day, with the administration supporting a Republican effort to overturn it. Mr. Biden will accuse the president, as he already has, of trying to eliminate protections for pre-existing conditions during a pandemic, aides said, with the stakes heightened by a Supreme Court now short one of the liberal justices who had previously voted to keep the law in place.
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For Democrats, the focus on health care — overlaid by the pandemic — is a rerun of the successful playbook that helped power the party’s takeover of the House of Representatives in 2018 and a fidelity to Mr. Biden’s steadfast promise to defend Obamacare, a pledge that helped him navigate through the 2020 primary.
Roe v. Wade in Jeopardy
The Biden campaign could also still seize on the uncertain future of abortion rights to mobilize younger voters, raising the specter of a Supreme Court tilted toward a 6-to-3 conservative majority.
“If you want something to fire up young people who weren’t all that interested this year, this is it,” John Anzalone, a pollster for Mr. Biden, said, noting that his research suggested that even apolitical young voters grasped abortion politics. “They know Roe v. Wade.”
The Associated Press reports, Ginsburg’s death puts Roe v. Wade on the ballot in November:
If Trump is able to install his nominee in that seat, both sides agree there’s a better chance than ever that Roe v. Wade — the 1973 decision established a nationwide right to abortion — could be overturned or gutted.
“We have been apprehensive for years, but this is more worrisome — this is a seismic shift,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project.
During his 2016 campaign, Trump, who had previously expressed unqualified support for abortion rights, won over skeptical anti-abortion leaders with multiple pledges to combat abortion, including choosing Supreme Court justices open to dismantling Roe v. Wade. Now, with Trump hoping to fill a vacancy for the third time and give the nine-member court six conservative justices, that pledge has new import.
“It is at least conceivable for the first time that we have a majority that would overturn Roe, and the battle would return to the states,” said Andrew Bath, executive vice president of the Thomas More Society, a conservative public interest law firm.
The high court has plenty of options if it wants to reexamine Roe. Planned Parenthood’s president, Alexis McGill Johnson, says there are 17 cases involving state-level abortion restrictions that are pending in federal courts “only one step away from the Supreme Court.”
The “forced birthers” are chomping at the bit to criminalize women and their doctors over abortion again. Conservatives Signal Roe v. Wade Showdown After Ruth Bader Ginsburg’s Death:
Conservatives are salivating at the prospect that President Donald Trump will be able to install a third member to the Supreme Court following the death of Justice Ruth Bader Ginsburg on Friday. Such a move appears likely to accomplish their No. 1 goal: dismantling the abortion rights established in the landmark 1973 Roe v. Wade ruling.
Conservatives have begun to signal that they are preparing for a showdown on abortion rights, which Ginsburg, a feminist icon, had staunchly defended since being confirmed to the bench in 1993 as a decision women should be able to make for themselves.
Finally, younger voters who are concerned about climate change and whether yours may be the last generation before a mass extinction event desolates human life on the planet had better turn out to vote. Donald Trump has been dismantling every environmental regulation enacted since the late 1960s because “the Rapture is coming any day, so who the hell cares? It’s apocalypse now, baby!”
The Washington Post reports, An extra Trump Supreme Court justice may help cement his environmental rollbacks:
A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office.
Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to if the federal government can take aggressive action to curb climate change — could be impacted.
And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change.
“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program.
Among the biggest cases the court could hear is a legal brawl over the Trump administration’s repeal of the Clean Power Plan.
That Barack Obama-era regulation sought to rein in greenhouse gas emissions from coal-fired power plants. But Scott Pruitt, at the time Oklahoma’s attorney general, challenged the rule, and the Supreme Court stayed its implementation.
In 2017, after Trump’s election, the Environmental Protection Agency — headed by Pruitt — began work on replacing it with a much less stringent standard. After it was finalized, dozens of Democrat-led states and green groups sued to throw out the rule.
The case could very well end up in the Supreme Court. The U.S. Court of Appeals for the District of Columbia Circuit is set to hear arguments next month.
If the high court rules in favor of the Trump administration, it could hamstring a future president from using existing law to regulate climate-warming pollution from the power sector.
Michael Gerrard, an environmental law professor at Columbia Law School, said the case could be a vehicle for conservative justices to undermine a landmark decision called Massachusetts v. the Environmental Protection Agency.
The next Supreme Court justice very well may be a deciding vote in several other high-profile environmental cases.
Another major one involves the scope of the EPA’s authority to protect rivers, streams and other wetlands, which the Trump administration has sought to limit.
The Supreme Court is likely to take up the case because the lower courts have already reached different conclusions in legal challenges, according to Thomas McGarity, an environmental law professor at the University of Texas at Austin.
“The lower courts have played a powerful role in restraining the Trump administration,” McGarity said. “Nearly all of the Trump administration’s rollbacks of Obama administration environmental initiatives are still pending in the lower courts and will therefore be ripe for review in the Supreme Court.”
That’s not all. Other rules primed for Supreme Court review include the EPA’s relaxation of regulations protecting people from breaches of coal ash impoundments, the Interior Department’s reduction of two massive national monuments in Utah and the department’s repeal of a rule meant to prevent offshore well blowouts similar to the one leading to the Deepwater Horizon spill.
“Obviously, not all of these cases will make their way to the Supreme Court,” McGarity said, “but several will.”
Vote like your life depends on it, because it quite literally does this year.