Last night, Justice Ruth Bader Ginsburg lost her fight against cancer. In the upcoming days, much will be written commemorating her long fight for justice. Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents). But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer. The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.
Before starting a look at the cases on the docket, three key things to note. First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal). That creates the possibility of a 4-4 tie. In the case of a 4-4 tie, there are two options. On the one hand, the Supreme Court can “affirm by an equally divided court.” Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases. On the other hand, the Supreme Court can set the case for re-argument when there is a full court. It is really up to the justices to decide which option to take. Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant. Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney. The audio from these arguments will be livestreamed by several news organizations.
October is likely to be the calm before the storm. Back last Spring, the Supreme Court had to cancel the March and April argument sessions. The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session. That left about half of the cases that would have been heard in March or April on the docket. Those cases are being heard in October. The biggest case in October is probably the first case up for argument — Carney v. Adams. This case arises from Delaware. Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party. So, on a seven judge court, there would likely be four Democratic judges and three Republican judges. The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants.
There are also cases on whether ERISA (the law governing employee benefit plans) precludes state regulation of “pharmacy benefit manages” (middlemen between the pharmacies and the health insurance plans who make money by overcharging insurance companies and underpaying pharmacies), whether the Religious Freedom Restoration Act permits the “victims” of invalid restrictions on their religious rights to not only challenge the restriction but also seek money damages from the employees enforcing those restrictions, a case involving state court jurisdiction (the ability to hear a case) over defendants who have some dealings with the state but not dealings connected with the current case,, and whether a party can raise a claim of excessive force related to an arrest if the party managed to evade arrest.
The Supreme Court returns to a more normal arrangement for the November argument session. For October, it is theoretically possible that there will be some 4-4 decisions, but it less likely that the splits will be clearly liberal vs. conservative (with Roberts or Gorsuch supplying the fourth vote on the liberal side). All of the October cases (with the possible exception of the excessive force case) involve the type of issues in which conservatives and liberals may have a different way of approaching the issue but there is no clearly correct conservative (or liberal) answer to the clash. (In other words, for most of the cases, both liberals and conservatives will see some arguments that favor the petitioner and some arguments that favor the respondents. Of course, the pros for conservatives will be cons for the liberals.)
November starts slowly with arguments on the day before election day and election day that are only mildly hot button issues. On Monday, there is a case in which the Sierra Club has filed a Freedom of Information Act for documents related to a regulatory decision and the government has asserted the “deliberative process” exception with the Supreme Court to decide what the test that governs that exception is.
On Tuesday, there is a case from Mississippi involving the punishment for murders committed by a juvenile (under eighteen year old) offenders. In prior cases, the Supreme Court has held that states may not automatically sentence such offenders to life without parole (which in some states is the minimum penalty for adult offenders). In making that ruling, the Supreme Court has discussed factors that sentencers (whether judges or juries) should consider. The issue in this case is whether anything in those discussions require the sentencer to make any specific findings or, if those factors are merely things to be weighed by the sentencer.
Things heat up on the day after the election. While many people will with bleary eyes by waiting to find how many absentee ballots remain to be counted in the swing states that are too close to call, the Supreme Court will be hearing a tough Free Exercise case. Over thirty years ago, Justice Scalia wrote his worst opinion ever. In that case (Smith), Scalia all but wrote the Free Exercise Clause out of the Constitution holding that there was nothing wrong with the government enforcing a neutral statute barring drug use to deny unemployment benefits to a person who used peyote in a religious ceremony. That decision led to the passage of the Religious Freedom Restoration Act which went far beyond the pre-existing understanding of the Free Exercise Clause to allow people to assert religious beliefs to broadly opt out of complying with the law. Now in Fulton, the question is whether a city (Philadelphia) can require religious-affiliated agencies who wish to provide services via a government program (here the placement of children in foster care) must comply with civil rights law barring discrimination (here discrimination against same sex couples).
The following week, both cases on Monday have some political aspects — one involving the rules governing immigration and what notice is required in connection with some parts of the deportation process and the other involving causes of action against federal employees for misconduct. However, the Tuesday case is the big case for November — the continued viability of the Affordable Care Act. This case should be a no brainer under traditional legal principles. The repeal of the tax penalty for the individual mandate makes the individual mandate hollow with no enforcement provision. However, the repeal of the tax penalty should not impact the validity of the rest of the Act, especially as the same Congress that repealed the tax declined to repeal the rest of the Affordable Care Act (thank you John McCain). This case should be a 6-2 decision in favor of California and against Texas and the Trump Administration. However, if the Trump Administration can replace Justice Ginsburg prior to the argument in this case, there is a real chance that there will be a 5-4 majority to set aside the normal rules and invalidate the Affordable Care Act, potentially reaching out and overruling the initial decision upholding the Affordable Care Act.
With the exception of the Affordable Care Act cases, I do not think that there is any individual case in November or December in which it will matter whether there is a replacement to Justice Ginsburg before January 3. On the handful of cases in which there is likely to be a conservative-liberal split, I do not think that there is likely to be a 4-4 split. Instead, I fully expect a 5-3 split. The loss of Justice Ginsburg will certainly alter what is said by the dissenters in those cases, but I do not think that it will alter the ultimate outcome in those cases.
As we will see in Part II of the preview, it is not necessarily the cases set for the next two months but the cases likely to come to the Supreme Court later in the term and in the years to come in which the replacement of Justice Ginsburg by a believer in conservative judicial activism could make the difference and endanger the rights that so many have fought so long to protect.
