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