SCOTUS Watch: Court adds review of DACA to its 2019-2020 term


The 2019-2020 U.S. Supreme Court term is slowly shaping up to be a momentous one, dropping a bombshell or two into the 2020 presidential campaign.

The Census case is not over, and could return as early as this summer, or in early October. As Dahlia Lithwick and Mark Joseph Stern note at Slate:

If there could be a one-sentence summary of his majority opinion in the term’s census case—in which the chief joined the court’s liberals to refuse to allow Donald Trump’s commerce secretary, Wilbur Ross, to add a citizenship question to the 2020 census—it would be this: “Go ahead and lie to me, but at least do it with gravitas.” Ross and his crew of Keystone Cops had attempted to add the citizenship question that would depress Hispanic response rates and boost white voting power in future redistricting, using pretextual reasons about which the secretary lied But his goals did not offend John Roberts’ politics; that much is clear from his opinion, which accepts the premise that Ross has the right to do what he did so long as he gives a better reason next time. They offended his sense of dignity and politesse with their sloppiness. Lie better next time. That’s the real holding of this case, and it tells you what you need to know about the chief.

On Friday, the Supreme Court granted review of the DACA program protecting young undocumented immigrants:

The Supreme Court announced Friday it will consider next term whether the Trump administration illegally tried to end the program that shields from deportation young undocumented immigrants brought to the United States as children.

[Three cases, which will be consolidated for hearing in the new term that starts in October. They are Department of Homeland Security v. Regents of the University of California; Trump v. NAACP and McAleenan v. Vidal.]

Lower courts have said that President Trump’s decision to terminate the Obama-era program was based on faulty legal reasoning and that the administration has failed to provide a solid rationale for ending it.

The Supreme Court’s somewhat reluctant review of the Deferred Action for Childhood Arrivals (DACA) program means that, for the third consecutive year, the high court will pass judgment on a Trump priority that has been stifled by federal judges — this time in a presidential election year and in a case with passionate advocates and huge consequences.

In 2018, the conservative justices narrowly approved the president’s travel ban on arrivals from a handful of mostly Muslim countries, which surprised most court observers.

The justices said they will also review a Montana Supreme Court ruling invalidating a state program offering tax credits for funding scholarships. The scholarships could be used at private schools, including religious schools, and the court said that violated a prohibition in the state constitution. The case is Espinoza v. Montana Department of Revenue.

This appears to be a reprisal of the 2011 U.S. Supreme Court case in Arizona Christian School Tuition Organization v. Winn, a legal challenge aimed at halting Arizona’s private school scholarship tax credit program. The decision declared that the plaintiffs in the case lacked standing to bring the challenge in the first instance because the program is funded by private contributions, not government funds.

The court has granted review in one Affordable Care Act case, Moda Health Plan Inc. v. United States, challenging whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.

But the Affordable Care Act case that is currently working its way up to the court, Texas v. United States, will likely not reach the court until later in the court’s term.

The Fifth Circuit Court of Appeals has scheduled for oral argument on July 9 in New Orleans the ruling by a hand-picked conservative activist judge, Reed O’Connor of the Federal District Court in Fort Worth, Texas, striking down the Affordable Care Act in its entirety based upon the Republican Congress’s sabotage of the health law by repealing the tax penalty provision under the individual mandate in the GOP tax bill. Remember, Chief Justice Roberts upheld the Affordable Care Act based upon the Constitution’s tax provisions, rather than the commerce clause, which he rejected by a rather specious argument. This case has been crafted specifically for the Chief Justice.

UPDATE: The Fifth Circuit Court panel of judges are Jennifer Walker Elrod, a George W. Bush appointee who will preside; Jimmy Carter appointee Carolyn Dineen King; and Kurt D. Engelhardt, a Trump appointee. Elrod is indeed a nightmare judge, having distinguished herself in anti-abortion and anti-immigration cases. Englehardt has a “history of disturbing rulings on cases involving racial violence and injustice, as well as cases involving sexual harassment and workplace discrimination against women.” (h/t Daily Kos).

On Friday the U.S. Supreme Court declined Alabama’s bid to revive abortion restriction:

Handmaids protest abortion bans in Phoenix.The U.S. Supreme Court on Friday sidestepped a major new challenge to abortion rights by declining to hear Alabama’s bid to revive a Republican-backed state law that would have effectively banned the procedure after 15 weeks of pregnancy.

Conservative Justice Clarence Thomas wrote an opinion agreeing with the court’s decision not to hear the issue now but making clear that he would vote to uphold such laws.

“The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote.

The Alabama law was one of a growing number passed by Republican legislators at the state level imposing a variety of restrictions on abortion.

“While we are pleased to see the end of this particular case, we know that it is nowhere near the end of efforts to undermine access to abortion,” said Andrew Beck, a lawyer with the American Civil Liberties Union, which challenged the law.

“Politicians are lining up to do just what Alabama did – ask the courts to review laws that push abortion out of reach and harm women’s health, with the hope of the getting the Supreme Court to undermine, or even overturn, a woman’s right to abortion,” Beck added.

Indeed, there are dozens of cases in the appellate court pipeline from which the U.S. Supreme Court can choose to hear the one case that best suits what the conservative justices want to do on the abortion issue. This seems likely to occur in the court’s next term.

A decisive overturning of the precedent of Roe v. Wade appears unlikely. Chief Justice John Roberts would prefer to choose a case that allows the court to engage in “a death by a thousand cuts” to substantially restrict a woman’s access to abortion. The conservative majority does not need to overturn Roe v. Wade, they only need to create exceptions that swallow the rule and render it a right in name only.

The Supreme Court has currently granted 50 cases, which when certain cases are consolidated, will lead to 41 oral arguments. That is substantially below the court’s average workload in recent years, so many more cases are to be added to the docket.