A Supreme Court without Ruth Bader Ginsburg is about to show us whether it still cares for the rule of law.
The new Supreme Court term will open on Monday under a cloud of uncertainty — and dread, if you’re a liberal. Justice Ruth Bader Ginsburg’s death means Republicans will almost certainly control six seats on the Court before the year is up. And President Donald Trump’s nominee to fill Ginsburg’s seat, Amy Coney Barrett, is an extraordinarily conservative judge who is likely to support lawsuits advanced by the legal profession’s right flank.
One such lawsuit is California v. Texas, an attack on the Affordable Care Act (ACA) that is widely viewed as ridiculous, even by many leading conservative experts who want to repeal it. Before Covid-19, approximately 20 million individuals had insurance thanks to the ACA — and this number has probably grown significantly due to pandemic-triggered job losses.
If the Supreme Court strikes down Obamacare — which, with Barrett essentially guaranteed to replace Ginsburg, is very much a possibility — every single one of those 20 million people could be stripped of their health coverage overnight.
The upcoming term could also write the final chapter in a long-simmering dispute over whether someone with a religious objection to LGBTQ people has a constitutional right to discriminate against them. Proponents of LGBTQ equality already faced an uphill battle in Fulton v. City of Philadelphia before Ginsburg’s death. With a presumed six Republicans on the Court, their prospects are even more grim.
Beyond these two especially high-profile cases, this term gives the Court an opportunity to reshape the law governing cruel and unusual punishments — and to potentially weaken existing safeguards against such punishments considerably. The Court could give federal law enforcement officers sweeping new immunity from civil lawsuits, as well as cut deep into Congress’s power to investigate Trump.
Moreover, it’s worth noting that the cases on the current docket were chosen by a nine-justice Court that included Ginsburg. In nearly all circumstances, at least four justices must agree to hear a case before it’s added to the Court’s argument calendar.
In the coming weeks and months, the Court’s Republican majority has the opportunity to add cases to its docket knowing it will likely have the votes to move the law sharply to the right.
In other words, the conservative legal movement is poised to remake large swaths of American law — and it’s well-positioned to do so in the years to come so long as Republicans control a supermajority of Supreme Court seats.
The Supreme Court could take health care away from millions of Americans
There’s no way to sugarcoat this: The legal arguments challenging Obamacare in California v. Texas are absurd. They’re the sort of arguments fair and impartial judges would laugh out of court, possibly after sanctioning the plaintiffs’ lawyers for bringing frivolous litigation.
As Yuval Levin, a prominent conservative commentator and policy wonk, wrote in the National Review, the notion that Obamacare cannot stand without the individual mandate “doesn’t even merit being called silly. It’s ridiculous.”
But with six conservative jurists, there’s a very real chance the Court will seize this opportunity to repeal a law Republicans have wanted to destroy for more than a decade. Judge Reed O’Connor, a former Republican Senate staffer appointed to the federal bench by President George W. Bush, already ruled in Texas that the whole law should be repealed. And two Republican appellate judges upheld much of O’Connor’s decision.
The case concerns a 2017 amendment to the ACA, which effectively repealed the law’s individual mandate requiring most Americans to either purchase health insurance or pay at least $695 in additional taxes. But the tax law Trump signed the same year reduced the penalty owed by people without health insurance to zero dollars.
The plaintiffs in Texas, which include 18 states with Republican governors or attorneys general, claim this zeroed-out mandate is unconstitutional.
One reason why this lawsuit should not be taken seriously is because it challenges an Obamacare provision that, at least after the 2017 amendment, does literally nothing. Again, the amended law requires individuals to either purchase health insurance or pay a zero-dollar tax.
The Constitution does not permit just anyone to show up in federal court and ask the judges to strike down a law. Rather, in order to bring a lawsuit challenging a legal provision, a plaintiff must show they were injured in some way by that law, a requirement known as “standing.”
Because no one is injured by a zero-dollar tax, no one has standing to challenge the zeroed-out individual mandate in court.
If the standing requirement did not exist, there is a plausible — though not exactly airtight — argument that the ex-mandate is indeed unconstitutional. The Supreme Court upheld the fully operational mandate as a valid exercise of Congress’s power to levy taxes in National Federation of Individual Business v. Sebelius (2012). But a zero-dollar tax is no tax at all, so there’s at least one non-frivolous argument that the neutered mandate is unconstitutional.
But even if you assume the non-mandate is unconstitutional, so what? Who cares whether a provision of the law that literally does nothing is constitutional?
Which brings us to the single most absurd aspect of Texas.
When a court strikes down part of a broader statute, it often needs to ask whether other parts of the law should fall along with it. This question, known as “severability,” is a normally speculative inquiry — courts must ask what hypothetical law Congress would have enacted had it known that one provision was invalid.
But speculation is unnecessary here because the question has been answered. In 2017, Congress spent months debating whether to repeal the ACA and how much of the law should go. Ultimately, it had enough votes to repeal only one provision: the individual mandate.
So we already know what Congress would have done had it been aware the zeroed-out mandate would ultimately be struck down: It would have enacted legislation that eliminated the individual mandate but kept the rest of the law intact. We know this because Congress enacted legislation that eliminated the individual mandate but kept the rest of the law intact.
California v. Texas, in other words, is more than just a challenge to the ACA. It is an early test of whether a Court with a 6-3 Republican majority is capable of honoring the rule of law. The plaintiffs’ arguments in this case would be comical if countless human lives weren’t endangered by them.
And if the Supreme Court is willing to strike down Obamacare on this risible legal theory, we cannot expect its new conservative majority to stay its hand in any case wherein the Republican Party’s preferred outcome is at odds with the law.
Religious conservatives could gain a constitutional right to discriminate against LGBTQ people
The question of whether private business owners who refuse to serve LGBTQ customers for religious reasons has been with us for quite some time. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court sided with a baker who refused to make a wedding cake for a gay couple. That said, the Court’s decision in Masterpiece was quite narrow and largely punted on the larger question of when religion provides a license to discriminate.
Fulton v. City of Philadelphia, Pennsylvania, which the Court will hear this upcoming term, superficially resembles Masterpiece. Like the earlier case, Fulton involves religious plaintiffs who claim the First Amendment’s command that the government shall not prohibit the “free exercise” of religion entitles them to discriminate against same-sex couples.
But there is one very important difference between Masterpiece and Fulton. Again, Masterpiece involved a private business. Fulton, by contrast, involves a government contractor that claims that it has a constitutional right to discriminate against same-sex couples while performing a governmental service.
The city of Philadelphia contracts with multiple private organizations to screen couples to determine whether they’re suitable to become foster parents. The city’s contract with these organizations contains a provision prohibiting them from discriminating on the basis of sexual orientation.
Historically, Catholic Social Services (CSS) has been one of the organizations that provided this service to the city. But in 2018, the Philadelphia Inquirer reported that CSS refused to work with same-sex couples. The city investigated and determined CSS was, indeed, in violation of the contract’s non-discrimination provision, after which it did not renew its contract with CSS.
Regardless of whether the Constitution permits private businesses to discriminate, the Supreme Court has long acknowledged that the government has more authority over its own operations than it does over purely private citizens. “There is a crucial difference, with respect to constitutional analysis,” the Court explained in Engquist v. Oregon Dept. of Agriculture (2008), “between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operation.’”
Fulton is not a case about whether private citizens can refuse service to LGBTQ people. It is a case about whether the government may refuse to discriminate against LGBTQ people — and whether it can order the people it pays to provide governmental services to provide those services equally to everyone.
Should the Supreme Court rule that religious conservatives may demand government contracts on their own preferred terms, the implications could be profound. It is one thing for private businesses to claim autonomy over their own limited domain. It is another thing altogether for a private contractor to effectively dictate terms to a government that is supposed to serve all people equally.
Federal law enforcement officers could gain immunity from lawsuits claiming they violated the Constitution
The Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) stands for a proposition that should be familiar to Spider-Man fans everywhere: With great power comes great responsibility.
Bivens held that federal law enforcement officers may be personally sued when they violate the constitutional rights of a private plaintiff.
“Power, once granted, does not disappear like a magic gift when it is wrongfully used,” Justice William Brennan wrote for the Court in Bivens. “An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus the Constitution must offer a remedy to victims of federal officers who inflict such harm on them.
But Bivens suits are “a ‘disfavored’ judicial activity,” according to a recent ruling joined by all five members of the Court’s current Republican majority. The 5-4 decision in Hernandez v. Mesa (2020) strongly suggests the Republican justices are ready to overrule Bivens.
Had those same five justices sat on the Court when Bivens was originally decided, Justice Samuel Alito wrote in Hernandez, “It is doubtful that we would have reached the same result.”
Which brings us to Brownback v. King, which the Court will hear in November.
The facts of Brownback are simply horrific. James King, the plaintiff in the case, was a 21-year-old college student when two law enforcement officers mistook him for a criminal suspect in the summer of 2014. After falsely identifying King as the fugitive they were looking for, the officers arrested him before allegedly beating and choking him to the point of unconsciousness.
King sued, alleging the officer’s actions violated his Fourth Amendment right against unreasonable seizure and excessive force.
The specific legal issue before the Supreme Court in Brownback is fairly technical, and thus difficult to summarize concisely. In essence, the Court must decide whether a statute known as the Federal Tort Claims Act prevents King from pursuing a Bivens claim against the officers.
Given the Court’s recently expressed hostility toward Bivens — and because Brownback is likely to be heard by an even more conservative Court than the one that decided Hernandez — there is a very real risk that Brownback could be used as a vehicle to overrule Bivens in its entirety, thereby leaving King without any remedy against the officers who mistook him for someone else, with violent consequences.
Government officials could be forced to compensate “religious liberty” plaintiffs
Tanzin v. Tanvir, which the Court will hear on Tuesday, presents a direct conflict between the conservative values pressed by the Fulton plaintiffs and the conservative disdain for decisions like that of Bivens — which, again, held that federal law enforcement officers could be sued directly — that is likely to animate the Court’s decision in Brownback.
Like Brownback, Tanzin arose from allegations of civil rights violations by federal law enforcement officers. Muhammad Tanvir says he was approached by two FBI agents who asked him “whether he had anything he ‘could share’ with the FBI about the American Muslim community.” After Tanvir declined to become an informant, those agents allegedly threatened him with deportation and placed him on the no-fly list.
Because he was placed on the list, Tanvir also claims that he was unable to fly to see his ailing mother in Pakistan and that he had to quit a job as a long-haul trucker because he could no longer fly home to New York after a one-way delivery.
The legal issue in Tanzin is whether the Religious Freedom Restoration Act, which governs many federal religious liberty claims, permits Tanvir to directly sue the FBI agents who allegedly violated his civil rights. Thus, the conservative justices will have to choose between expanding the power of plaintiffs who allege their religious rights were violated and protecting federal law enforcement officers from liability.
Liberals are also likely to be conflicted about the proper result in Tanzin. Though the facts of this particular case involve a Muslim man who was allegedly abused by law enforcement, a ruling in Tanvir’s favor could also subject federal officials who enforce anti-discrimination laws against conservative Christians to personal liability.
The Court could cut deeply into the Constitution’s safeguards against cruel and unusual punishment
The Eighth Amendment forbids “cruel and unusual punishments,” and the Supreme Court has held that this amendment prohibits states from imposing certain punishments on certain individuals.
In Atkins v. Virginia (2002), for example, the Court held that “death is not a suitable punishment” for someone who is intellectually disabled. Roper v. Simmons (2005) extended this holding to juvenile offenders, relying in part on the theory that a “lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young.”
More recently, in Miller v. Alabama (2012), the Court held that juvenile offenders should not be sentenced to life without the possibility of parole unless they are “the rare juvenile offender whose crime reflects irreparable corruption.”
Notably, both Ginsburg and now-retired Justice Anthony Kennedy were in the majority in these closely divided cases. It is far from clear whether the Court still has the five votes necessary to sustain the decisions in Atkins, Roper, and Miller.
Which brings us to Jones v. Mississippi, a case the Court will hear in November. The specific issue in Jones is whether sentencing judges must make an explicit determination that a juvenile offender is “permanently incorrigible” before sentencing them to life without parole. But the stakes in Jones are potentially much higher.
If there are five justices who wish to overrule decisions like those of Atkins, Roper, and Miller, Jones potentially presents them with a way to do it. Indeed, the case could enable the Court’s new Republican majority to drastically roll back much of the Constitution’s protections against cruel and unusual punishment.
The Court could impose additional limits on Congress’s power to investigate the president
Last term, in Trump v. Mazars USA (2020), the Court imposed strict new limits on the power of Congress to investigate the president. The decision in Department of Justice v. House Committee on the Judiciary, which the Court will hear in December, could offer a window into whether this Supreme Court will take additional steps to shield Trump from investigation.
The specific legal issue in House Committee is fairly narrow. The House Judiciary Committee seeks grand jury materials related to former special counsel Robert Mueller’s investigation into potential Russian interference in the 2016 election. As a general rule, such materials are kept confidential, but the Federal Rules of Civil Procedure sometimes allow such materials to be disclosed “preliminary to or in connection with a judicial proceeding.”
A federal appeals court held that an impeachment trial counts as a judicial proceeding, and as such a House committee may potentially obtain grand jury materials if it seeks them as part of an impeachment inquiry. The Court will consider whether that conclusion was correct.
By the time this case is argued, it’s likely that the stakes in House Committee will be fairly low. Trump will either be a lame duck, in which case there will be less need to investigate him closely, or will have held onto the presidency, in which case a House investigation is unlikely to thwart his efforts to further consolidate power.
Nevertheless, House Committee could provide a window into the newly constituted Court’s eagerness to protect Trump from investigation.
The Court could retroactively invalidate years’ worth of agency actions
In last term’s Seila Law v. Consumer Financial Protection Bureau (2020), the Supreme Court held that it is unconstitutional for Congress to create a federal agency led by a single person if that person cannot be fired by the president at will.
At least at first, the practical implications of the decision appeared fairly minimal — the only immediate impact of Seila Law is that the CFPB director can now be fired by the president at any time. Should Democratic nominee Joe Biden prevail in the upcoming election, this means he can replace Trump’s CFPB director immediately after taking office.
And yet Collins v. Mnuchin, a case the Court will hear in December, could raise the stakes of the Court’s Seila Law decision considerably.
Collins involves the Federal Housing Finance Agency (FHFA), an agency that, like the CFPB, has a single director who enjoys some protections against being fired by the president. After Seila Law, there is little doubt that FHFA Director Mark Calabria will be stripped of these protections. If Biden wins, he will almost certainly be allowed to dismiss Calabria.
But the plaintiffs in Collins ask for substantially more. As several lower court judges explained, the plaintiff’s claim is that “everything the FHFA has done since its inception is void because it was an unconstitutionally structured agency” (Congress created the FHFA in 2008).
As a result, a dozen years’ worth of federal actions could potentially be vacated.
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Author: Ian Millhiser