OCT 15, 2019
It has almost gone unnoticed,
but amid the daily Sturm und Drang of the Trump impeachment inquiry, the
Supreme Court has begun another term. In any other year, the reconvening of the
court would be headline news. However, like everything else in the Trump era,
the court has taken a back seat to the chaos surrounding our 45th commander
in chief.
Nonetheless, the nine justices
who constitute our most powerful judicial body are set to decide a bevy of
politically charged cases that could impact the 2020 elections and profoundly
affect the lives of each and every American. It’s always tricky to predict
outcomes in the Supreme Court, but with its five-member conservative majority
now firmly entrenched, the panel is poised to swing further to the right as it
grapples with issues on LGBT rights, the Deferred Action for Childhood Arrivals
(DACA) program, abortion, the Second Amendment and “religious liberty.”
It is also likely that the
justices will be called on to address at least some aspects of the burgeoning
constitutional crisis triggered by the impeachment inquiry and Donald Trump’s
continued defiance of Congress.
Here are the potential
blockbusters in waiting:
LGBT Rights: Bostock
v. Clayton County, Georgia; Altitude
Express Inc. v. Zarda; R.G.
& G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission
Title VII of the
landmark Civil Rights Act of 1964 prohibits employers from
discriminating against employees on the basis of race, national origin,
religion or sex. Three cases argued last week ask whether the act also bans
discrimination because of sexual orientation.
The cases were filed by two
gay men and a transgender woman, who claim they were improperly discharged.
They are represented by a number of prominent lawyers, including Stanford
University law professor Pamela Karlan, and David Cole, the American Civil
Liberties Union’s national legal director.
In sum and substance, the
plaintiffs contend that sexual orientation, correctly understood, is a subset
of sex, and is therefore entitled civil rights protection. Their argument
squarely pits the court’s conservative justices, who typically adhere to narrow
“textualist” readings of statutes, against the tribunal’s liberals, who often
favor more expansive interpretations.
During the oral
arguments, Justice Samuel Alito articulated the conservative position with
his customary belligerence. Noting that the term “sexual orientation” isn’t
mentioned in Title VII, Alito charged that the plaintiffs are asking the court
to assume a power best left to Congress. “[W]hether Title VII should prohibit
discrimination on the basis of sexual orientation is a big policy issue,” he
remarked, “different from the one that Congress thought it was addressing in
1964. … And if this Court … interprets the 1964 statute to prohibit discrimination
based on sexual orientation, we will be acting exactly like a legislature.”
Alito’s concerns were echoed
by Chief Justice John Roberts, who suggested that the plaintiffs want the court
to “update” the law. Roberts also worried that such an update would unduly
impact “religious organizations” whose doctrines preach against homosexuality.
U.S. Solicitor General Noel
Francisco also participated in the arguments, appearing on behalf of the Trump
administration and in support of the employers. In August, Francisco filed a
brief with the court, confirming that the Justice Department has reversed its
Obama-era policy of giving Title VII protections to gay and transgender
workers.
As expected, Justice Ruth
Bader Ginsburg pushed back against the conservatives, observing that the court
has held that sexual
harassment is outlawed under Title VII, even though that term isn’t
listed in the act. “No one ever thought sexual harassment was encompassed by
discrimination on the basis of sex back in ’64,” she
said. “And now we say, of course, harassing someone, subjecting her to
terms and conditions of employment she would not encounter if she were a male,
that is sex discrimination, but it wasn’t recognized [until later].”
If there is a possible swing
vote in the litigation, it might be cast by Justice Neil Gorsuch. In an
animated give-and-take with Cole, Gorsuch conceded that whether Title VII
should be read to cover sexual orientation was “really close.” He warned,
however, of the “massive social upheaval” a victory for the plaintiffs would
cause, adding that changes of that magnitude should be “an essentially
legislative decision.”
DACA: Department
of Homeland Security v. Regents of the University of California; Trump v.
NAACP; McAleenan
v. Vidal
Next month, the court will
hear arguments in three consolidated cases that will determine whether the
Trump administration’s executive order terminating the DACA program is lawful.
As a bit of background, the
program was implemented because Congress was unwilling to ratify the
Development, Relief, and Education for Alien Minors (DREAM) Act, which would
have provided a pathway to citizenship for a large class of young people (1.3 million,
according to some credible estimates) who had been brought into the U.S. as
children without the intent to violate American law.
In response to this
congressional gridlock, President Obama ordered then-Secretary of Homeland
Security Janet Napolitano to introduce the program by way of a formal
memorandum, which was published on June 12, 2012. Obama followed up on
Napolitano’s memo three days later with an official
Rose Garden announcement.
In essence, DACA was designed
as an exercise of prosecutorial discretion aimed at reordering the nation’s
deportation priorities. Under the program, the Department of Homeland Security
(DHS)—the cabinet-level department that sets deportation policies and oversees
the operations of both Border Patrol and U.S. Immigration and Customs
Enforcement (ICE)—offers renewable two-year periods of relief from deportation
and work authorization to those who meet the program’s eligibility criteria.
In September 2017, the Trump
administration announced its intention to end DACA after a six-month
grace period. The repeal, however, was subsequently blocked by three federal
circuit courts, largely on procedural grounds.
The Trump administration wants
a decision on the merits. It contends that the president has the power to
repeal DACA because the program lacks congressional authorization.
Nothing is more central to
Trump’s nativist agenda than his crackdown on immigration. Ultimately, the
Supreme Court could well defer to the president, just as it did in upholding
his Muslim
travel ban in 2018. If it does, it could turn the dreams of DACA
beneficiaries into mass deportation nightmares.
It’s been a long time since
the Supreme Court considered a major Second Amendment case. Eleven years ago,
the court delivered a landmark triumph to the gun-rights lobby in District of
Columbia v. Heller—a 5-4 majority decision written by the late Justice
Antonin Scalia that held, for the first time, that the Second Amendment
protects an individual right to own and bear firearms.
Heller broke with the great
weight of prior scholarship and legal precedent, including the Supreme Court’s
1939 decision in United States v.
Miller, which reasoned that the Second Amendment protects gun ownership
only in connection with service in long-since antiquated state militias. And
while Heller was technically limited to gun ownership in the nation’s capital
and other federal venues, the court extended its individual-rights analysis to
the states two years later in McDonald v. Chicago, via a
5-4 opinion authored by Alito.
In December, the court will
hear the case of the New York State Rifle & Pistol Association Inc. v. City
of New York, which has the potential to rival or surpass Heller for its impact
on gun rights and gun regulation.
At issue is a New York City
ordinance adopted in 2001 that bars residents from taking their guns outside
city limits. The ordinance was challenged in a federal
lawsuit filed by the National Rifle Association’s New York affiliate
and three city residents, who argued that the regulation was unconstitutional
in light of Heller.
The plaintiffs lost at both
the district court level and before a three-judge panel of the 2nd Circuit
Court of Appeals, which issued a unanimous
decision in February 2018, concluding that the ordinance withstood
Second Amendment scrutiny under the decision. The Supreme Court agreed in
January to review the case.
What made Heller and McDonald
attractive to the gun-rights lobby as test cases is that each concerned
near-total bans on gun possession by private citizens. Outright prohibitions
are rarely easy to justify, and the five-member conservative Supreme Court
majority in each instance reinterpreted the Second Amendment to invalidate the
prohibitions involved.
Like Heller and McDonald, the
New York City case presents an outright ban—not on ownership, but on the right
to bear arms beyond the home. Realizing it could easily lose in the Supreme
Court, New York City announced in June that it has amended
the ordinance and will henceforth permit licensed gun owners to take
their firearms to second homes, businesses or shooting ranges outside city
limits. In July, the city filed a formal
motion with the Supreme Court, requesting that the case be dismissed
as moot because the ordinance is no longer in effect. The court denied the
city’s motion earlier this month, setting the stage for a Second Amendment
showdown.
Abortion: June
Medical Services LLC v. Gee
In 2014, Louisiana enacted a
law that requires doctors who perform abortions in the state to have active
admitting privileges at a hospital within 30 miles of any clinic where they
provide abortion services. Currently, there are only three
abortion clinics in Louisiana. If allowed to take
effect, abortion-rights proponents charge, the law would put at least one
and possibly two of the clinics out of business.
On its face, the Louisiana
statute appears unconstitutional in light of the Supreme Court’s 2016 decision
in Whole
Woman’s Health v. Hellerstedt, in which the court struck down a nearly
identical Texas law. By a 5-3 margin reached after the death of Scalia, the
court held that the Texas statute placed an undue burden on women seeking
abortions in violation of both Roe v. Wade and the
court’s 1992 ruling in Planned Parenthood
v. Casey, which affirmed Roe’s validity.
Nonetheless, in 2018, the
conservative 5th Circuit Court of Appeals upheld the Louisiana law. In
February, the Supreme Court stayed (i.e.,
temporarily blocked) the circuit court’s ruling from taking effect, allowing
the state’s abortion providers to seek Supreme Court review. Earlier this
month, the court agreed to hear the appeal.
Although the case has not yet
been set for oral arguments, abortion-rights groups understandably fear
the worst. The Supreme Court today is very different from the panel that
decided Whole Woman’s Health. Gorsuch has succeeded Scalia, and Justice Brett
Kavanaugh has replaced Justice Anthony Kennedy, who wrote the majority opinion
in Whole Woman’s Health and retired in 2018. Both Gorsuch and Kavanaugh are
known for their anti-abortion views.
When the dust settles on the
June Medical case, Whole Woman’s Health could easily be overturned. Worse
still, even if Roe technically survives, it could be gutted as a meaningful
legal precedent.
Religious Liberty: Espinoza
v. Montana Department of Revenue
In 2015, the Montana
Legislature enacted a tax-credit scholarship program for families who send
their children to private schools, including religious institutions. In 2018,
the Montana Supreme Court struck the law down, declaring that it violates the
First Amendment because the program aids religious organizations. In June, the
U.S. Supreme Court agreed to take up the case.
The high court under Roberts
has been especially supportive of “religious liberty,” or as the court’s
critics allege, religious
intolerance. In 2013, the court held in Burwell v.
Hobby Lobby Stores Inc. that closely held private corporations with
“sincere religious beliefs” can lawfully deprive female employees of
health-insurance coverage for contraception. In 2017, in Trinity Lutheran
Church of Columbia Inc. v. Comer, the court struck down Missouri’s policy of
denying cash grants to schools owned and operated by churches and other
religious institutions.
If the trend continues this
term, the court will strike yet another blow to the separation of church and
state, and hand another victory to Trump’s fanatical evangelical followers.
Oral argument has not yet been scheduled.
The Constitutional Crisis: Cases
to be Determined.
In April, Trump took to Twitter,
threatening to petition the Supreme Court to intervene in the event House
Democrats moved to impeach him. The threat was entirely idle, and the House has
initiated impeachment proceedings all the same.
The Constitution vests the
House of Representatives with the “sole
power of impeachment.” As a result, the House’s decision to impeach isn’t
subject to judicial review. We know this beyond any reasonable doubt not only
because of the text of the Constitution, but because of the Supreme Court’s
1993 ruling in Walter Nixon v.
United States, involving a federal judge who insisted that he had received
an unfair impeachment trial in the Senate. The court unanimously rejected the
judge’s argument, holding that impeachment presented a nonjusticiable political
question. Judge Nixon was convicted and removed from office.
But while the court will not
intervene to stop Trump’s impeachment, we also know—courtesy of United States v. Nixon (1974),
involving President Richard Nixon—that it will review such impeachment-related
matters as the president’s refusal to comply with properly issued subpoenas. In
a unanimous decision written by then-Chief Justice Warren Burger, the court
ordered Nixon to turn over secret audio tapes made in the Oval Office to
Watergate special counsel Leon Jaworski, rejecting Nixon’s claims of executive
privilege.
It is doubtful that the
Supreme Court wants to get dragged into Trump’s impeachment drama. But like it
or not, it may be compelled to examine Trump’s blanket refusal to comply with
congressional subpoenas. When and if it does, it will have to determine whether
Trump is above the law, or if he, like Nixon, must be held accountable for his
actions. The future of American democracy literally could hang in the balance.
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