With the death of Supreme Court justice Ruth Bader Ginsburg on September 18, our nation, so badly shaken during these past months, has been rattled to its very core. Her passing has already jolted the 2020 elections—and it will have far-lasting effects on the makeup and, potentially, the very structure of the Supreme Court, reshaping the legal terrain for a generation of American life.
Still, while I’d like to be able to hop into my DeLorean and report back from, say, 2050 on the lasting impact of her death, we have more immediate concerns: The Supreme Court starts hearing cases again on October 5.
The court’s 2020–21 term was poised to be a challenging one even before Ginsburg’s death. The docket is stacked with consequential cases, with the court slated to hear important arguments about the Affordable Care Act, police brutality, and whether governments may forbid contracting with religious organizations that discriminate against gay and lesbian couples. It will also weigh a case against Facebook and one that will determine whether the Justice Department must finally release the full report by special counsel Robert Mueller.
And the court may be asked to intervene in the presidential election. The Supreme Court’s power to determine the fate of a contested election—and, essentially, pick the president—lurks beneath the waves, blue or otherwise, like some deep-sea monster, ready to snap the ship of state in half.
All this was bad news when there were four liberals on the court. Now, no matter how the Ginsburg replacement fight plays out, the liberal justices are likely to be outmatched. If Republicans succeed in ramming through Donald Trump’s nominee Amy Coney Barrett in the next few weeks, the court will decide some or all of these cases with six justices appointed by Republican presidents and only three appointed by Democrats. But even if the Democrats stave off an appointment, leaving only eight justices in place, it will be hard for any liberal arguments to prevail. That’s because, even in the event of a tie, the lower court ruling stands, meaning that all of the work the GOP has done to stack the lower courts comes into play. As of now, Neil Gorsuch—the man elevated to the nation’s highest court after Senate Republicans blocked the confirmation of Merrick Garland—is the court’s swing justice.
If the law were an objective thing, the death of a Supreme Court justice wouldn’t have a massive effect on the outcome of the presidential election or the availability of health care in America. If the law were apolitical, changing justices would be like changing meteorologists: There would be some debate about where a hurricane might make landfall, but they’d all agree on the existence of a storm.
But if such a thing as legal objectivity ever existed, it was obliterated 20 years ago with Bush v. Gore. It was then that the Supreme Court proved, by a 5-4 vote, that it was a purely political branch. And it was then that the Democrats should have committed to fighting the Republicans for control of the court by any means necessary. If the Supreme Court is able to hand the election to the Republican candidate again, it will be because the Democrats did not address the balance of the court after the last time it picked the president.
Hopefully, it will not take the left another 20 years to learn this lesson. As we look at the critical cases before the court this term, we need to recognize that these battles have already been lost in many ways. The issues in play before this court have been presented in a way that accepts Republican theories and priorities. We’re debating religious freedoms for Christians who want to be bigoted, not Muslims who want to worship unimpeded. We’re debating Facebook’s ability to conduct the Internet equivalent of robocalls, not individual privacy rights on the platform. We’re debating whether cops violate constitutional rights when they shoot unarmed people in the back who then get away, not whether cops will be arrested and charged with attempted murder for doing so.
If we want to change the outcome of some of these cases, we must fight Trump’s attempt to replace Ginsburg. If we want to change the next generation of legal debates, we need to restructure the Supreme Court.
Democracy v. Voter Suppression
Perhaps the most important case the Supreme Court will decide during its fall term is one that doesn’t even exist yet: the one it might have to decide in the event of a contested election. I don’t know if the court will be asked to pick the president, as it did in 2000 with its ruling in Bush v. Gore, or if it will be asked to cast the deciding vote in a close Senate race that determines the balance of power in the chamber. Or maybe the court will simply be asked to rubber-stamp and put some legalese around whatever coup d’état Trump tries to pull off.
What I do know is that lawsuits are coming. It is difficult to imagine any presidential election scenario in 2020 that does not include a raft of litigation. There will be lawsuits alleging that election officials didn’t count ballots or miscounted them. There will be lawsuits alleging voter fraud. There will be lawsuits complaining that some election precincts kept their polls open too late or closed them too early. The stakes are too high, and Trump has been too effective at undermining faith in the American electoral process. I’m hoping there are only lawsuits, because otherwise there will be blood.
The prospects of Republican-appointed justices handing the election to Trump were high even when Ginsburg was alive. While some people held out hope that Chief Justice John Roberts would side with voters over his party, these people were not taking a realistic look at his record. He has attacked voting rights over the entire course of his career. In fact, he authored the biggest setback to voting rights of our generation: his 2013 decision in Shelby County v. Holder, which eviscerated the Voting Rights Act.
Now, however, with Ginsburg gone, Roberts’s role scarcely matters. Even in the best-case scenario, in which only eight justices hear the case and he discovers a sudden respect for voting rights, the decision will come out as a tie—which means the lower court ruling will hold. And that ruling will come from a lower court that has very likely been stacked with Trump judges. If, for instance, an election appeal comes out of Florida, that case will come up through the state’s conservative-controlled Supreme Court (as Bush v. Gore did) or the 11th Circuit Court of Appeals, which Trump has flipped to a majority-conservative court. Other 2020 swing states present similar issues. The Michigan Supreme Court is controlled by Republican appointees. Pennsylvania’s highest court is controlled by Democratic appointees, but the Third Circuit Court of Appeals, which oversees federal law in the state, was flipped to conservative control by Trump and Senate majority leader Mitch McConnell in 2019.
And make no mistake: These and other conservative-controlled courts have no intention of playing nice. In both the state and federal systems, they have already shown a willingness to suppress the vote in the face of the coronavirus pandemic. Efforts by voting rights advocates to expand the franchise and make it easier for people to vote have been stymied by conservative judges and justices at nearly every turn.
Republicans have used raw political power to stack the courts with conservatives; now those courts are giving Republicans the tools to maintain minority rule over the popular will.
California v. Texas
On November 10, a week after the elections, the Supreme Court will hear California v. Texas. When that happens, the land mine that Roberts laid for the Affordable Care Act when he upheld the law in 2012 could finally blow the whole thing up. The initial conservative challenge claimed that the ACA’s individual mandate, which required uninsured people to pay a penalty for failing to get health insurance, was an unconstitutional use of federal power under the Constitution’s commerce clause. Roberts could have simply told the challengers that they were wrong and sent them on their way, but the chief justice, like most Republicans, doesn’t like it when the federal government uses the commerce clause to pass regulations on big businesses.
Instead, Roberts famously converted the individual mandate from a normal government regulation authorized by the commerce clause to a tax authorized under the federal government’s broad taxation powers. He didn’t do it to save the ACA; he did it to uphold a major piece of legislation passed by a supermajority in the Senate, while preserving his ideological objections to the commerce clause power.
In the years since, Trump and congressional Republicans have failed to repeal the ACA, but they have succeeded in eliminating the individual mandate. The 2017 Tax Cuts and Jobs Act (which sounds like it was named by a 6-year-old just getting hooked on phonics) dropped the tax penalty for the individual mandate to zero. With that part of the law gone, conservatives now return to the Supreme Court arguing that, without the individual mandate they themselves killed, the entire health care law can no longer be considered a tax and thus is unconstitutional.
This is as cynical as a bouncer mugging a guy waiting in line and then telling him he can’t afford the cover charge. A normal Congress does not try to make its own law unconstitutional, and a normal court would not countenance such a bad-faith pretext to get it to repeal a law that Congress could not.
There are two questions before the court in California v. Texas: whether the individual mandate is constitutional now that the tax has been reduced to zero and, if the mandate is unconstitutional, whether that makes the ACA unconstitutional as a whole. The legal term for whether a law survives parts of it being ruled unconstitutional is “severability,” and the way the court determines that issue will likely determine the fate of the ACA.
With the death of Ginsburg—may her memory be a blessing—the prior Fifth Circuit ruling could be critical. Earlier, US District Judge Reed O’Connor, a George W. Bush appointee from Texas, determined that the individual mandate was unconstitutional and that the mandate was the “keystone” of the ACA, making the rest of the act unconstitutional without it. The Fifth Circuit affirmed O’Connor’s ruling. If a new justice has not been appointed to the Supreme Court by November 11 and if the court then splits 4-4 on the case, the Fifth Circuit’s ruling will stand.
However, O’Connor and the Fifth Circuit were asked only to assess the constitutionality of the individual mandate. Arguably, O’Connor’s holding about the rest of the ACA could be read as a mere suggestion—though he wouldn’t be the first Republican to vote to repeal the ACA without actually being able to do it.
But it’s very hard to predict what will happen if a Supreme Court majority agrees that the individual mandate is unconstitutional yet the court splits 4-4 on the question of severability. Roberts could punt the case back to the Fifth Circuit to let it decide on severability, even though the lower court has already indicated how it feels about that issue. Or Roberts could hold off on deciding the entire case and schedule it for reargument after a ninth justice is named to the court. Or he could admit defeat, side with his other conservative colleagues, and rule that the ACA is not severable from the suddenly unconstitutional individual mandate, thereby making the entire act unconstitutional.
To echo the great, albeit fictional, Clubber Lang, my only prediction is pain. The ACA is in critical condition, and without Ginsburg, there are unlikely to be enough votes to save it, even in the midst of a pandemic that has already killed more than 200,000 Americans. Eventually, a Republican-appointee-controlled court will do what a Republican-controlled Senate could not.
Fulton v. City of Philadelphia
On November 4, the day after the elections, the Supreme Court will hear arguments in a lawsuit against Philadelphia brought by Catholic Social Services and a number of foster parents. The city stopped using the Catholic agency as a referral service to find foster parents after city officials became aware that it was refusing to place kids with same-sex couples. For its part, Catholic Social Services maintains that the city’s refusal to use its bigoted foster-care program is an unconstitutional infringement on its religious rights.
It’s one thing for religious conservatives to claim that the Constitution gives them a personal right to bigotry. In a free society, a personal right to be hateful is just something we all have to accept. But it’s quite another thing when conservatives argue that the Constitution requires the state to endorse their bigotry. That is an argument a secular society does not have to accept in the name of religious freedom.
In this case, it’s important to understand that the city is not asking Catholic Social Services to endorse same-sex marriage. It is not asking the agency to place foster kids with Wiccans or druids or theater people. It is not asking the agency to do anything. Catholic Social Services is and will remain free to place whichever kids are entrusted to it into any home it deems qualified, according to whatever religious teachings it happens to care about that day.
What the city will not do is contract the services of an agency that refuses to place children with LGBTQ families because of the dogmatic—and discriminatory—strictures of an organized religion. That’s an obvious and reasonable decision for a secular government to make.
Unfortunately, religious conservatives are not content to practice their faith peacefully and without government interference; their long-term culture war involves forcing the government to endorse discrimination and bigotry in the name of Jesus. They’ve turned the free exercise clause of the First Amendment—which is supposed to be a shield to protect people from government prohibitions of their religious practices—into a sword they want the government to use to strike out against the LGBTQ community and secular norms.
This corruption of the free exercise clause has increasingly been upheld by the Supreme Court. In Trinity Lutheran Church of Columbia, Inc. v. Comer, decided in 2017, a religious school successfully sued on free exercise grounds after it didn’t receive playground renovation funds from a state program until all the public schools were given a chance at the money. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018, a baker successfully argued that a Colorado antidiscrimination board was overly hostile to the free exercise of his religious belief that gay people should be discriminated against.
The Supreme Court decided both of those cases in 7-2 rulings. Justices Stephen Breyer and Elena Kagan joined the five religious conservatives for those rulings. Breyer and Kagan have a habit of bending over backward to try to limit these theocratic rulings by whittling them down to a very specific set of facts, and there’s a sense they would have come down differently in these cases if they had the votes to win. But as it stands, the religious right has a supermajority on the court that is eager to endorse the notion that free exercise is a tool to eviscerate the distinction between church and state.
I expect Fulton v. City of Philadelphia to be the worst articulation of this view yet. I expect the Supreme Court to force Philadelphia to use a foster service that is openly bigoted and call it religious freedom.
I’ll probably end up framing Justice Sonia Sotomayor’s lone dissent somewhere in my office.
Department of Justice v. House Committee on the Judiciary
Remember the Mueller report? Remember how US Attorney General Bill Barr lied about what it said? And remember when the Democrats asked to see the underlying documents and testimony in the investigation and Barr said no and the media called the report a bust?
Pundits declared the Mueller report dead ages ago, but Democrats on the House Judiciary Committee are still trying to get Barr’s Justice Department to release the full story. They still want to see the documents and grand jury testimony that Barr redacted from the report, and in July 2019 they sued the Justice Department to do so. The Democrats won in US district court, but the Justice Department appealed. They won again in the D.C. Circuit, but the Justice Department appealed. Finally, that lawsuit is before the Supreme Court.
Or at least it will be. It’s on the court’s docket for December 2, by which time Election Day will have come and gone—which means that, whatever else happens, Barr will have accomplished his goal of making sure Americans do not hear the full story about foreign powers meddling in the 2016 presidential election until after the 2020 elections.
This is not justice; this is the obstruction of justice. This is a corrupt attorney general using whatever means available to hide the truth from the American people—with the apparent complicity of the Supreme Court.
As far as I’m concerned, Trump has won this round politically. He got what he wanted: The media largely dismissed the Mueller report, the president was not convicted of the obstruction of justice he was impeached for, and he will likely never be held to account for soliciting foreign interference in the 2016 presidential election. The only press this ruling will spawn will be the dozens of law review articles that will be read by the tens of people who think deeply about the limits of grand jury secrecy under Rule 6 of the Federal Rules of Criminal Procedure.
The legal disposition of this case is still important, however, because it will set a precedent for presidents and attorneys general on what they can or cannot do to hide the results of an independent investigation into a president’s suspected wrongdoing. Precisely because Trump was so successful in escaping accountability for his efforts, he will not be the last presidential candidate to seek foreign help to win an election. A ruling against Trump here will come too late to stop him, but it might make the next candidate think twice.
Still, even a victory for precedent’s sake will be cold comfort. I believe in hell solely because I need to believe in a place where the people who aided and abetted the Trump administration can go and be judged by someone who acts with more dispatch than John Roberts.
Facebook v. Duguid
Cases like Facebook v. Duguid are the reason social media giants tend to either spread misinformation and lies that help conservative candidates win elections or refuse to do anything to stop that spread. Conservative politicians lead to conservative judges, and conservative judges lead to ignorant tech rulings that tech bros can exploit for profit and power.
I love this case because the facts are a testament to how one person can challenge a corporate giant in our country. It’s not the most consequential case on the Supreme Court’s docket this year, but it is an important reminder that ordinary citizens can and do challenge the tech behemoths. These businesses do not exist outside the law, and their practices can be regulated—by the courts or by Congress.
Noah Duguid did not have a Facebook account, yet he nonetheless kept receiving text messages from the company warning him that somebody was trying to access his (nonexistent) account. This advertorial harassment went on for 10 months. In 2015 he sued Facebook under the Telephone and Consumer Protection Act. That law prohibits companies from using an automated telephone dialing system, more commonly known as an autodialer, to make robocalls.
The problem, of course, is that Facebook isn’t technically using an autodialer to worm itself into people’s text messages. It’s using something that accomplishes the same goal, but the technology is different from what is specified in the statute. I won’t pretend to understand how it’s different; I went to law school, not a-billion-dollars-is-cool school.
How a judge should handle a situation like this is one of the big differences between liberal and conservative jurists. Liberals tend to adopt an “I see what you did there” approach and interpret regulations based on what a thing does, not merely what it is called. Conservatives tend to go the other way, pulling out a dictionary to play banal word games, missing the forest while debating the difference between a Quercus rubra and a Crataegus monogyna (which are both, you know, trees).
Tech companies like Facebook generally prefer the conservative approach to interpretation. Why? For the same reason gun manufacturers do. Conservative judges are willing to let companies get out of regulations simply by slapping a new name and a different widget on the same object or product. This forces Congress to go back and pass entirely new legislation to regulate that object or product. Even if Congress has the will to reregulate (which it often doesn’t), the process gives large companies (and their lobbyists) another bite at the apple to change or manipulate the regulation to their liking.
In this case, it’s an issue the Supreme Court must decide because the circuit courts are split. The Second and Ninth Circuits (which cover New York and California, respectively) prohibit Facebook’s autodialer, while the Third, Seventh, and 11th Circuits allow it.
The conservative majority on the Supreme Court almost always sides with giant corporations over little guys like Duguid. But Facebook isn’t guaranteed to win. Supreme Court justices are old, occasionally cranky, and rarely tech savvy. If their grandkids get in their ears about how annoying unsolicited text messages can be, maybe some of these conservative justices will tell Facebook to get off their lawn.
Torres v. Madrid
In July 2014, Roxanne Torres dropped her friend off at an apartment complex in Albuquerque, N.M. Unbeknownst to her, police officers were lurking at the location to arrest a suspect who lived there. The officers decided that Torres was a person of interest and approached her vehicle. They were wearing police identification but were otherwise dressed in dark tactical gear. One of the officers went to her driver’s side window and ordered her to put up her hands. Then the officer fiddled with the handle on her locked door. Torres believed she was being carjacked and attempted to drive away. The officers interpreted this as an attempt to drive toward them and so, as soon as the car lurched forward, opened fire, hitting her two times in the back.
Torres got away. The police apprehended her later, when she was at the hospital receiving treatment for her gunshot wounds.
The officers were not charged for shooting an unarmed woman in the back. But Torres filed an excessive-use-of-force claim, citing the Fourth Amendment’s protection from unreasonable search and seizure.
The US District Court and the 10th Circuit Court of Appeals ruled in favor of the cops because she managed to get away. I’m not making that up. The 10th Circuit found that Torres had not been seized because she was not apprehended on the spot.
On October 14, Torres’s appeal of the 10th Circuit’s ruling is set to be argued in front of the Supreme Court. This case is critical if you care at all about beginning to address police brutality and violence against Black and brown people. The Fourth Amendment is one of the only constitutional provisions that can be used to address police misconduct. Adopting the 10th Circuit’s rule would functionally change the definition of the Fourth Amendment: Instead of protecting us from unreasonable search and seizure, it would protect us only from successful acts of unreasonable search and seizure. Constitutional protections against excessive force should not be contingent on whether the cops beat you until you stop moving. The 10th Circuit’s decision is both horrifying as a matter of law and tone-deaf as a matter of politics.
Fortunately, Fourth Amendment issues are among the few that do not break along the normal liberal-versus-conservative lines. The Eighth, Ninth, and 11th Circuit Courts of Appeal have rejected arguments similar to the one upheld by the 10th Circuit in this case. When he was on the Supreme Court, Justice, Antonin Scalia favored a robust interpretation of the Fourth Amendment, and other so-called originalists like Gorsuch and Justice Clarence Thomas are at least amenable to strong Fourth Amendment protections. On the other side, Breyer has been a bit of a weak link when it comes to the Fourth Amendment protections supported by the court’s left.
This case was supposed to be argued in front of the Supreme Court last term, before the murder of George Floyd and the Black Lives Matter uprising that followed, but was rescheduled because of Covid-19. The mainstream media might well have overlooked it had it been just another Supreme Court case sandwiched between a number of Trump-related lawsuits and arguments. I think people will notice it now. We have witnessed an uprising in our country against police violence. It’s hard to imagine the Supreme Court will respond to that uprising by ruling that the Fourth Amendment doesn’t apply unless the cops successfully kill or incapacitate you.