The Supreme Court’s run out of excuses to avoid controversial issues
In the aftermath of a divisive election, a riot at the US Capitol and the unprecedented final days of the Trump administration, the Supreme Court kept many controversial issues in a holding pattern of sorts, sticking to Chief Justice John Roberts’ objective of keeping his branch of government out of the political spotlight.
But now Trump is an ordinary citizen, the Biden administration is in place and the justices are expected as soon as Monday to begin to act on a mound of lingering issues they have been sitting upon, including abortion and the question of former President Donald Trump’s tax returns.
Some of the disputes are closely linked to Trump, others are cases on the upcoming calendar that might become moot should the Biden administration reverse Trump policies.
Also, looming as a backdrop, is the possibility that Roberts might once again be tasked with presiding over Trump’s second impeachment trial — although legal experts differ on the chief justice’s role as it pertains to a proceeding against an ex-president. Finally, there is a new whisper campaign in town, as progressives wonder if Justice Stephen Breyer at 82 years old, might be thinking about retirement as early as this term in order to give Biden the chance to fill the seat with a younger justice.
While much has changed in Washington, one thing remains the same: the composition of the court — thanks to Trump — is now split 6-3 along ideological lines. There will always be a significant number of unanimous cases, and other instances where strange bedfellows break expectations. But in the cases that most grab the public’s attention down the road, including abortion, immigration, affirmative action and voting rights, the conservatives are likely to unite and treat the Biden administration very differently than they did the Trump administration.
Friday morning, the justices held their regular private telephone conference to discuss an impressive array of substantial issues. Monday morning, they will release a list of cases they will take up or reject and also issue at least one opinion.
Trump-related cases: Taxes, Twitter, emoluments
All the way back in October, Trump’s personal lawyers came to the court with an emergency request: they asked the justices to temporarily block a lower court decision that allows Trump’s tax returns to go to the Manhattan district attorney while the legal challenge plays out.
Last July, a 7-2 court had rejected broad claims of immunity from a state criminal subpoena seeking his financial documents. The justices sent the case back to the lower courts so that the President’s lawyers could make more targeted objections regarding the scope of the requests. After more losses, Trump returned to the justices who proceeded to say nothing for over three months.
Also related to Trump is a First Amendment challenge to his decision in 2017 to block followers on his Twitter account. That case is complicated by the fact that the former President was banned from Twitter in the waning days of his presidency and he is now no longer in office.
Other disputes concern accusations that Trump violated provisions of the Constitution that bar the president from receiving an “emolument” or benefit from a foreign or domestic government. It stems from the fact that Trump, unlike other presidents, continued to retain an interest in his businesses and he let those businesses take money from foreign and domestic governments. Critics said his properties could be frequented by officials in order to curry favor with the now-former President.
Elections
Pending from before Election Day is a request from Republicans in Pennsylvania challenging a state Supreme Court decision that allowed ballots received up to three days after Election Day to be counted.
The justices displayed no appetite to review the last election, but the case offers them the opportunity to examine issues that could impact future elections, such as the ability of the US Supreme Court to review state Supreme Court rulings on state constitutions.
Abortion
The justices have been considering a strict abortion law in Mississippi — blocked by the lower courts — that bans abortion after 15 weeks that critics say violates almost 50 years of court precedent dating back to Roe v. Wade. Supporters of abortion rights hope the court denies the case but are fearful that Amy Coney Barrett’s elevation could move the court to the right in the area of abortion rights.
Another case concerns a Trump-era regulation that restricts family planning clinics that receive federal funds from providing referrals for abortion.
Immigration
On immigration, the court has in front of it a challenge brought by state and local officials against Trump’s regulation issued in August 2019 that makes it more difficult for immigrants to obtain legal status if they use public benefits such as Medicaid, food stamps and housing vouchers.
Next month, the court is scheduled to hear arguments concerning funding for Trump’s border wall as well as his policy that mandates that non-Mexican asylum seekers stay in Mexico as they await hearings in the United States. Biden has already announced reversals in those areas, and it remains to be seen what his Justice Department does in these cases.
And as he was sworn in, Biden promised to act quickly to pass executive actions. If past is precedent, critics of the new President could act quickly to attempt to block the policies. Such challenges would eventually make their way back to the high court, a very different court, that reviewed Obama-era programs.
On Inauguration Day, Jessica Anderson of the Heritage Action for America warned that “conservatives are prepared to fight back against the destructive policies of the far left.”
