Supreme Court to Weigh Hot-Button Issues Against Tense Political Backdrop

By Brent Kendall and Jess Bravin (WSJ)

Oct. 6, 2019 11:00 am ET

New term beginning Monday will include cases on abortion, gay rights, gun rights and DACA

WASHINGTON—The Supreme Court returns from its summer recess on Monday to a set of polarizing cases that could demonstrate the impact of President Trump’s appointees—and the influence of Chief Justice John Roberts —against the backdrop of an impeachment inquiry and a looming election.

Pick a hot-button issue and it’s on the docket—or could be soon. Gay rights? Oral arguments are set for Tuesday. Mr. Trump’s cancellation of the immigration program known as DACA? It’s slated for November. Gun rights? That’s on tap for December, the first major Second Amendment case the court has taken in a decade. And on Friday the court agreed to rule on abortion restrictions in Louisiana, a case that could send early signals about whether a more conservative court will begin narrowing abortion rights.

“All of those cases are red meat to a lot of people,” says Dan Ortiz, a law professor at the University of Virginia. “And there are things in the pipeline that could make things even more interesting.”

In terms of public visibility and legal impact, the 2019 docket could eclipse anything the court has handled since Trump appointees Neil Gorsuch and Brett Kavanaugh joined the court. Some of the decisions are likely to land near the term’s end in June. That timing could thrust the court into the political arena just as the 2020 presidential contest comes into focus, particularly if the justices step in to resolve subpoena battles or related power struggles between Mr. Trump and congressional Democrats who are investigating him.

At the center sits Chief Justice Roberts, a thoroughly conservative jurist who heads perhaps the most conservative Supreme Court in 80 years. He is dealing with competing pressures: seizing the opportunity to implement the rightward legal vision that animated his career versus exercising the restraint many believe necessary to preserve the court’s credibility. The chief justice also is facing the prospect of presiding over any Senate impeachment trial of Mr. Trump.

It is a “misperception” to view the court as a political body, Chief Justice Roberts said last month in New York. Of 19 cases resolved by 5-4 votes last term, only seven fell along perceived ideological lines, he noted. “It shouldn’t come as a surprise because we don’t go about our work in a political manner,” he said.

Nevertheless, those seven 5-4 splits included most of the major cases, including a landmark Roberts opinion eliminating the power of federal courts to remedy partisan gerrymanders. Given the court’s rightward trajectory, the question this term is “whether the chief justice is going to make sure it goes slowly and incrementally, or whether we are going to see the majority really do some stuff,” says University of Chicago law professor David Strauss.

The gay-rights litigation focuses on whether federal civil-rights law protects LGBTQ people from discrimination in the workplace. A bedrock 1964 law prohibits sex discrimination; Tuesday’s cases ask whether that language must be read to prevent employers from firing workers because they are gay or transgender.

The arguments put Justice Kavanaugh in the spotlight: The man he replaced, Justice Anthony Kennedy, was the crucial vote in every one of the court’s gay rights decisions—all of which he wrote—culminating in his 2015 opinion for a 5-4 court that legalized same-sex marriage nationwide.

No case could have more immediate practical impact than the justices’ review of Mr. Trump’s 2017 decision to end the Deferred Action for Childhood Arrivals program that has provided legal protection and work permits to hundreds of thousands of undocumented immigrants who were brought to the U.S. as children.

Lower courts blocked the DACA wind-down, saying the Trump administration didn’t offer a sufficient legal rationale and explanation of why it was changing course.

The White House argues that DACA itself is unlawful and maintains that federal courts don’t have authority to review the administration’s decision to rescind the Obama administration’s “nonenforcement” of immigration law.

In a separate immigration-enforcement case, the court will consider whether states like Kansas can bring charges against illegal immigrants who put false Social Security numbers and other information on a federal employment-verification form. The justices also are considering a border case involving a civil suit against a U.S. border-patrol agent who allegedly shot and killed a Mexican teenager on Mexico’s side of the border.

The Supreme Court will dive into several notable criminal cases this term. Its first argument Monday examines whether states can abolish the insanity defense. A handful of states have done so, spurred at least in part by the backlash against notorious insanity-related acquittals like that of John Hinckley for his attempted assassination of President Reagan.

The justices later in the day will consider whether the Constitution requires a unanimous jury for a criminal conviction. Only two states have allowed non-unanimous convictions and, according to the plaintiff’s brief, both were motivated by prejudice: Louisiana’s Jim Crow constitution, adopted in 1898, allowed convictions on 9-3 votes to prevent African-American jurors from blocking conviction of black defendants, while in 1934, Oregon enacted a 10-2 requirement after a holdout juror spared a Jewish defendant from a manslaughter conviction.

Early next year, the court will take up a white-collar crime case from the so-called Bridgegate scandal in New Jersey, hearing an appeal by Bridget Kelly, a onetime aide to former Gov. Chris Christie. She was convicted of public-corruption offenses for her role in retaliating against the Democratic mayor of Fort Lee—who didn’t endorse the Republican Mr. Christie in 2013—by creating traffic jams that limited motorists’ access to the George Washington Bridge that crosses into New York City.

On gun rights, the court in December is hearing a challenge to New York City restrictions that barred the transport of firearms to second homes or shooting ranges. The city, however, has asked the court to dismiss the case, because legislators subsequently changed the law to allow gun owners to carry their licensed handguns outside city limits. If the justices do consider the legal merits, the case could test how Chief Justice Roberts, who a decade ago voted to recognize an individual right to keep handguns in the home, or Justice Kavanaugh, whose nomination was championed by the National Rifle Association, view gun rights in an era of frequent mass shootings.

Later in the term, the justices will return to the issue of taxpayer support for religious schools and also will again take up the Affordable Care Act, examining whether the government must pay billions of dollars to health insurers who sold coverage on exchanges under the Obama-era health law. It is possible the justices could face a second ACA case later in the term that seeks to invalidate the entire health law.

Write to Brent Kendall at brent.kendall@wsj.com and Jess Bravin at jess.bravin@wsj.com