Supreme Court begins its sprint to finish — and a decision by one justice might be the most important
By Robert Barnes,
Andrew Kelly Reuters
Supreme Court justices on Monday will begin the sprint to conclude their work this month, with pending decisions on issues as diverse as the fate of the Affordable Care Act and compensation for college athletes.
Also on the docket: a voting-rights case that could determine how the court will decide future battles over the issue, a clash between a Catholic organization and a city’s anti-discrimination law, and whether school officials can discipline students for off-campus speech.
But perhaps the most consequential decision has no deadline and will be made by a court of one: 82-year-old Justice Stephen G. Breyer.
[With Democrats taking over Washington, Breyer faces pressure to retire]
The court’s senior liberal member has faced unprecedented pressure to step down from his lifetime appointment while a Democratic president is in the White House and the party still maintains its shaky majority in the Senate.
Supreme Court justices are particularly competent about keeping retirement plans secret until they are ready to reveal them, and Breyer has given no hints of his.
He certainly has given no indication he is tired of the job he has held for 27 years; because of Justice Ruth Bader Ginsburg’s long tenure, Breyer has been the leader of the court’s diminished liberal bloc for less than a year.
And he’s been the court’s most loquacious member during the coronavirus pandemic, speaking to the American Bar Association, law schools and a Zoom audience of high school and middle school students.
Some thought they heard a valedictory note in his speech at Harvard Law School in April. He defended the court’s independence and warned that proposals to expand its membership might threaten what he called an objective, apolitical institution.
[Breyer warns those advocating packing the Supreme Court to ‘think long and hard’]
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
But the long speech in some ways was a compilation of what Breyer has said in the past. Others say a decision to retire would be an acknowledgment that partisan considerations do matter — otherwise, why leave now?
Liberal activists and some Democrats say the political reality should be recognized.
A Republican-led Senate refused to consider President Barack Obama’s nomination of Judge Merrick Garland to fill Justice Antonin Scalia’s seat when he died suddenly in 2016, leaving the spot open for President Donald Trump. And when Ginsburg died last September, Republicans raced to confirm Amy Coney Barrett, even though voting in the presidential election had already begun.
“Everyone knows that a justice’s legal philosophy matters enormously in the way cases are decided,” University of California at Berkeley law school dean Erwin Chemerinsky wrote last month in an opinion piece for The Washington Post.
“Though he can’t predict the future, Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook.”
Erin Schaff
AFP/Getty Images
Justice Stephen G. Breyer in April.
No matter Breyer’s decision, the Supreme Court would retain its 6-to-3 conservative majority for the foreseeable future. The coming weeks will provide a more telling portrait of how a court with three conservative Trump nominees will interpret the law.
With the court scheduled to complete its work by the week of June 28, here are some of the unresolved issues it faces:
Fulton v. City of Philadelphia
(oral argument was Nov. 4.)
The court is considering whether the city of Philadelphia may end its contract with a Catholic agency that declines to evaluate same-sex couples as potential foster parents.
City officials stopped its decades-long contract with Catholic Social Services after a 2018 article in the Philadelphia Inquirer described the group’s policy. Officials said that violated the city’s law banning discrimination based on sexual orientation.
[Latest clash between religious beliefs and gay rights divides Supreme Court]
A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled the city was within its rights to end the contract and was not targeting the Catholic agency for its religious views. Instead, the court said, the city was insisting that those with whom it does business agree with its nondiscrimination policy.
Catholic Social Services contends the city is forcing it either to violate its religious views about marriage or forgo providing the kind of services essential to its mission. It noted that it had never been approached by a same-sex couple and that other city contractors were happy to work with those applicants.
The case provides the court the opportunity to draw lines between religious freedom and government’s interest in outlawing discrimination. The justices punted on that question in 2018, when it considered the case of a Colorado baker who refused to make a wedding cake for a gay couple, and court find ways to do so again in the Philadelphia case.
California v. Texas and Texas v. California
(oral argument was Nov. 10)
The court is considering a third major challenge to the Affordable Care Act, Obama’s landmark domestic achievement. It has twice upheld what has become known as Obamacare.
The key issue this time was whether a 2017 decision by Congress to remove the financial penalty for not buying health insurance — the individual mandate — also eliminated the legal underpinnings that led the court to uphold it previously. And if so, should the entire law be wiped from the books?
[Supreme Court seems ready to uphold ACA in latest challenge]
The challenge was brought by Republican-led states and defended by Democratic-led states. The Justice Department under Trump said the mandate was unconstitutional and the entire law should fall.
But President Biden has said he wants to build on Obamacare rather than abolish it, and the government’s lawyers reversed their position after the new president took office.
The cases pose three questions: Do the challengers have legal standing to bring the lawsuit? Did changes made by Congress in 2017 render unconstitutional the ACA’s requirement for individuals to buy insurance? If so, can the rest of the law be separated out or must it fall in its entirety?
Brnovich v. DNC and Arizona Republican Party v. DNC
(oral argument was March 2)
The court is reviewing two laws in Arizona that a lower court said hurt minority voters in the state, even though they are widely used elsewhere in the country.
One throws out the ballots of those who vote in the wrong precinct, even if some races, such as for governor or president, are not dependent on precinct location. The other restricts who may collect ballots cast early for delivery to polling places, a practice detractors call “ballot harvesting.”
[Supreme Court seems ready to uphold laws lower court found unfair]
It would not be a surprise to see the high court disagree with a lower-court ruling and leave the restrictions in place. In an unusual letter, the Biden administration reluctantly agreed that Arizona’s laws do not violate Section 2 of the Voting Rights Act, which is the section at issue.
But the greater impact will be the test that the increasingly conservative court develops for proving violations under the VRA, as new laws are proposed and state legislatures begin redrawing congressional and legislative districts following the 2020 Census.
NCAA v. Alston and AAC v. Alston
(oral argument was March 31)
The NCAA is contesting a lower-court ruling that would allow colleges to offer greater academic-related perks to Division I football and men’s and women’s basketball players — benefits such as scholarships for graduate degrees, paid postgraduate internships and computers, musical instruments and other types of equipment related to education.
[NCAA takes its case to the Supreme Court]
The case is a long-running antitrust lawsuit filed by former West Virginia running back Shawne Alston and former University of California center Justine Hartman, representing a class of former men’s and women’s college athletes.
It’s not directly related to the debate surrounding name, image and likeness (NIL) compensation that is taking place in Congress and state capitals across the country, nor does it address uncapped payment for athletes’ on-field prowess.
At oral argument, the justices seemed dubious of the NCAA’s claim that the ban on compensation was necessary to protect the integrity of amateur athletics but also worried about undermining a system that has been in place for decades.
The Biden administration supported the athletes.
Danna Singer
Brandi Levy outside her Pennsylvania high school.
Mahanoy Area School District v. B.L.
(oral argument April 28)
A high school cheerleader’s profane social media rant about not making the varsity squad and her school’s reaction to it led to a rare case about the free speech rights of public school students.
[Cheerleader’s Snapchat rant leads to “momentous” Supreme Court case]
Brandi Levy was kicked off the squad by school officials who said her Snapchat missive sent to friends — “F— school, f— softball, f— cheer, f— everything.” — violated policy. But a lower court said school officials had no authority over speech that occurred off-campus and on a weekend.
At oral argument, the justices seemed reluctant to endorse the lower court’s blanket assertion that off-campus speech by students is completely off-limits to school officials, especially as social media has amplified bullying and racial attacks.
But they also seemed to have a hard time drawing clear lines between when discipline was appropriate and when it endangers the free speech rights of the nation’s 50 million public school students.
