The U.S. Supreme Court is headed for another blockbuster year, starting a busy new term Monday with hot-button cases that will be decided in the midst of a contentious presidential election campaign.
Led by Chief Justice John Roberts, who has been unusually vocal about protecting the high court’s reputation, the nine justices on the bench will likely seek a low profile, as they did last term following the raucous confirmation hearing of conservative Justice Brett Kavanaugh.
But with a string of cases involving socially divisive issues, from abortion to LGBTQ rights, on the docket, court watchers are bracing for as many ideologically split decisions that could be exploited by presidential and congressional candidates for political gain.
“It would probably be a mistake to expect that many of the high-profile cases will be unanimous or nearly unanimous; more likely is a series of angry 5-to-4 decisions,” said Garrett Epps, a professor of law at the University of Baltimore.
“The court is nearly as polarized along partisan lines as is the nation, and like the rest of us is stressed by the unpredictability of the political situation and the Trump administration,” Epps said. “All told, this is going to be a hot October term.”
Divisive issues
The high court’s last term was marked by a relatively high degree of consensus among the justices even as they tackled such divisive issues as the addition of a citizenship question to the decennial census and partisan gerrymandering to redraw congressional district maps. Every conservative justice, for example, crossed party lines, at least once, to vote with the liberal wing.
“I can fairly predict that the new term will have a fair share of closely watched cases,” Supreme Court Justice Ruth Bader Ginsburg said at a recent event at Georgetown University Law Center.
Typically, the court takes up about 70 cases a year. So far this term, it has agreed to hear 56 cases, including an abortion case added to the docket Friday. An additional dozen cases or so will likely be added as the term gets underway.
The abortion case challenges a Louisiana law that requires abortion doctors to have admitting privileges at local hospitals. The court struck down a similar Texas law three years ago, and the new case will test whether the justices will affirm that precedent.
The justices begin the new term with oral arguments in three related cases that are seen as a test of how the newly consolidated majority of five conservative justices on the bench tackles LGBTQ rights.
In two of the cases — Bostock v. Clayton County and Altitude Express v. Zarda — the question is whether Title VII of the 1964 Civil Rights Act prohibition on sex discrimination extends to sexual orientation. Gerald Bostock, a social worker, and Donald Zarda, a skydiving instructor, claimed they were fired because they are gay.
In the third case — R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission — the justices will determine whether Title VII’s ban on sex discrimination covers transgender people. The transgender woman at the center of the case, Aimee Stephens, says she lost her funeral director’s job because of her identity.
The 1964 law says that employers cannot discriminate “because of sex.” In 2015, the Equal Employment Opportunity Commission, under the Obama administration, ruled that the prohibition included discrimination against LGBTQ people.
However, the Trump administration has rolled back some of the Obama-era protections for LGBTQ people and has sided with the employers in the three cases.
Cautiously optimistic
Some rights advocates remain cautiously optimistic.
“I’m more optimistic than most progressives about the possible outcome of these cases,” Katie Eyer, a Rutgers University law professor, said during a discussion at the American Constitution Society last week.
In November, justices will hear oral arguments in three cases that challenge the legality of the Trump administration’s decision in 2017 to end Deferred Action for Childhood Arrivals (DACA).
DACA was created in 2012 by the Obama administration to protect from deportation immigrants who entered the country as children. But the Trump administration called the program an “unconstitutional exercise of authority by the executive branch.”
The plaintiffs — a DACA recipient in New York, the University of California and the NAACP — challenged the move, getting lower courts to block the decision. The administration appealed, leading the Supreme Court to take up the case in June.
At issue is whether the lower courts could weigh in on the Trump administration’s decision to end DACA and whether that decision was legal.
At stake is the fate of nearly 800,000 immigrants who are not only protected from deportation but also benefit from a program that allows them to work, obtain a driver’s license and get health insurance. On Friday, more than 140 businesses and trade associations filed a “friend of the court” brief in support of the program.
For the first time in nearly a decade, the politically divisive issue of gun rights returns to the court, as a debate rages over access to firearms following a spate of deadly mass shootings.
In a case called New York State Rifle and Pistol Association vs. City of New York, the justices will weigh whether New York City’s now-defunct ban on carrying a handgun to a home or shooting range outside the city violates the Second Amendment and other constitutional rights.
New York City lifted the ban over the summer and later asked the court to dismiss the case. But the rifle association objected, arguing that the city might change its rules again.
The court has yet to issue a ruling on New York’s motion. Oral arguments in the case are scheduled for December.
The justices are broadly divided between conservatives, who view gun ownership as an individual right, and liberals, who want to restrict it.
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