Abortion, LGBTQ rights, DACA and more are all potentially on the chopping block at the Supreme Court.
It’s June, the month when the Supreme Court traditionally hands down its most contentious cases. That means that, by the end of this month, we are likely to get decisions on an array of hot-button cases — including issues like LGBTQ discrimination in the workplace, the fate of President Obama’s Deferred Action for Childhood Arrivals (DACA) program, and the continued viability of Roe v. Wade — that could shake up the political and policy landscape.
The Court is wrapping up its first full term since the hardline conservative Associate Justice Brett Kavanaugh joined the Court in 2018, replacing the more moderate conservative Justice Anthony Kennedy. (Kavanaugh joined in the middle of the 2018-19 term.) That means that Republicans now have the votes to move the law sharply to the right in many areas where Kennedy showed more restraint. Because the Court typically selects its cases months in advance, this is also the first term made up entirely of cases that Kavanaugh played a role in choosing.
It’s been a more dysfunctional than usual term due to the coronavirus pandemic. The Supreme Court closed its building to the public in March as a precaution against the virus, and it soon announced that it would not hold its ordinary oral argument sessions in March and April. Instead, the justices heard a subset of the cases the Court originally planned to hear in those two months in May, and heard those arguments in a series of conference calls that were broadcast to the public.
One upshot of the justices’ response to the pandemic is that some of the Court’s decisions may be delayed until later in the summer. Because the Court wrapped up oral arguments in May, instead of in April, and because the pandemic will likely prevent the justices from traveling during the summer, it’s possible they will prefer to spend their extra time at home refining their opinions.
But even if the Court’s opinions are delayed somewhat, that delay is unlikely to last very long. Within very short order, the Court could transform several areas of American law.
The Court could effectively eliminate the right to an abortion
For many years, Justice Kennedy kept an uneasy peace on abortion rights. Though Kennedy typically voted to uphold laws restricting access to abortion, he rejected state laws that cut so deeply into the right to an abortion that they threatened to eliminate it altogether.
The Louisiana law at issue in June Medical Services LLC v. Russo is such a law. Like a Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt (2016) (while Kennedy was still on the Court), the law at the heart of June Medical requires abortion doctors to have admitting privileges at a hospital near the clinic where they perform abortions.
These admitting privileges laws are a form of what abortion rights advocates refer to as “targeted restrictions on abortion providers,” or “TRAP” laws — laws that superficially appear designed to make abortions safer, but that actually do little or nothing to advance patient health, while simultaneously making it very difficult to operate an abortion clinic.
If the Supreme Court blesses such TRAP laws, that could be the effective end of a constitutional right to abortion. The right to an abortion would technically still be intact — but states could be free to shut down clinics by imposing so many sham health regulations on those clinics that it would be impossible for them to operate.
But even if the Supreme Court rejects this effort to limit abortion rights — at oral argument in June Medical, conservative Chief Justice John Roberts at times appeared uncomfortable with the backhanded way Louisiana hopes to attack abortion rights — the Court still has a solidly conservative Republican majority that is likely to enable states to ban abortion in a future case.
The Court will decide if federal law makes it illegal to fire someone for being LGBTQ
Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, are all potentially historic LGBTQ rights cases. They are also a test of the honesty of Associate Justice Neil Gorsuch, one of the Court’s most conservative members.
Let me explain: Title VII of the Civil Rights Act of 1964 prohibits employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” In Zarda and Bostock, gay plaintiffs argue that this ban on “sex” discrimination encompasses discrimination based on sexual orientation. Harris Funeral Homes involves a trans plaintiff who made a similar claim about anti-trans discrimination.
As a textual matter, these are very strong arguments. If an employer allows men to form romantic bonds with women, but does not permit women to do the same, that is a form of sex discrimination because male and female employees are treated differently.
Similarly, anti-trans discrimination is discrimination “because of … sex” because, to hold anti-trans beliefs, someone must root those beliefs in assumptions about how males and females are allowed to present and to act. As a federal appeals court explained in Harris Funeral Homes, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”
Yet, while the plaintiffs’ textual arguments are strong, there is little doubt that Congress did not believe that it was banning LGBTQ discrimination when it banned sex discrimination in 1964. These three Title VII cases, in other words, pit the text of the law against the intentions of the lawmakers who enacted that law.
Which brings us back to Gorsuch. Gorsuch has long argued that the only legitimate way to read a statute is to follow its text, not follow the expectations of the people who drafted it. And, at oral arguments in the Title VII cases, he appeared open to the plaintiffs’ textual arguments.
His vote is likely to decide the outcome of these three cases, and it will reveal whether Gorsuch is an honest textualist when the text of a law cuts against the conservative positions he’s advanced in past LGBTQ rights cases.
Trump could gain sweeping immunity from congressional oversight
Trump v. Mazars and Trump v. Deutsche Bank are not hard cases. They involve congressional subpoenas seeking many of President Trump’s financial records as a part of various investigations — including an investigation into whether there are “any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests.”
Existing law could not be more unfavorable to Trump. As the Court held in Eastland v. United States Servicemen’s Fund (1975), Congress may conduct nearly any investigation, and subpoena documents in that investigation, so long as that investigation is “intended to gather information about a subject on which legislation may be had.” Protecting American elections from Russian interference is a subject on which legislation may be had.
Nevertheless, at oral arguments in Mazars and Deutsche Bank, the Court’s Republican majority appeared more concerned with preventing, in Justice Kavanaugh’s words, Congress from declaring “open season” on presidents than it was with following existing law.
So it is possible, perhaps even likely, that the Court will give Trump broad new immunity from congressional investigation.
Hundreds of thousands of DACA beneficiaries could face deportation
As a legal matter, Department of Homeland Security v. University of California and two consolidated cases involve the tiniest of disputes. The issue is whether the Trump administration completed the appropriate paperwork when it decided to wind down the DACA program, an Obama era initiative that allows nearly 700,000 undocumented immigrants brought to the United States as children to live and work in the country.
But the human stakes of these cases are potentially enormous. Homeland Security could decide whether hundreds of thousands of immigrants continue to live relatively normal lives — or whether they must fear deportation.
There is little question that the Trump administration may end DACA if it chooses to do so, but the law typically requires federal agencies to explain why it decided to change a particular policy before that policy change may take effect. Three lower courts held that the Department of Homeland Security’s memos explaining why DACA must end did not adequately explain the government’s reasons for doing so.
So it’s more than a little odd that the Supreme Court felt the need to hear these DACA cases in the first place. If the Trump administration is really determined to end DACA, it can produce the necessary paperwork and then it will get its wishes. The nation’s highest Court typically does not sit to determine whether a government official committed a paperwork error.
Broadly speaking, the Court is likely to resolve Homeland Security in one of three different ways. It could agree with the lower courts, leaving DACA in place unless the administration corrects its paperwork error. It could hold the existing memos to be adequate, and thus allow DACA to sunset for as long as Trump remains president. Or it could potentially declare DACA to be illegal altogether — thus preventing any future president from reviving the program.
That last outcome appeared unlikely at oral arguments, but it cannot be ruled out entirely. And it would be a disaster for hundreds of thousands of immigrants.
The religious right could be one of the biggest winners from this term
Even setting aside the possibility that the Court dismantles abortion rights, the Court also heard several significant religion cases this term that could hand victories to the Christian right.
Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania concern whether employers with religious objections to birth control may deny health coverage for birth control to their employees. The Trump administration gave nearly all of these employers a broad ability to do so, although it is far from clear that the administration acted lawfully when it did this.
There is a possibility, however, that the Court will hold that religious employers always have a broad right to deny birth control coverage to their employees, regardless of whether the current administration believes that they should have this right.
Two other cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, involve the “ministerial exemption” to civil rights laws. Broadly speaking, religious ministers are exempted from anti-discrimination law — a church may fire its preacher because that preacher is a woman, or because they are black. But the definition of who qualifies as a “minister” is unclear.
Both Morrissey-Berru and Biel involve Catholic school teachers who spent a minority of their time teaching religious subjects. If the Court concludes that these teachers qualify as ministers, it could open the door to many other employees of religious employers being defined as ministers as well — stripping those employees of civil rights protections in the process.
Finally, Espinoza v. Montana Department of Revenue concerns whether the state of Montana is obligated to reinstate a scholarship program for private school students, and to permit students at religious schools to obtain these scholarships.
Espinoza could also potentially strike down a state constitutional provision forbidding the state from making “any direct or indirect appropriation or payment from any public fund or monies” to religious institutions, on the (somewhat anachronistic) theory that this provision was inserted into the state constitution because of anti-Catholic bigotry.
Trump could gain broad new power to fire people
Most federal agencies are led by a cabinet secretary or some other official who can be fired by the president. A few agencies, often described as “independent” agencies, are led by either a single individual or a multi-member board that can only be removed from office for incompetence, malfeasance, or similar cause.
Seila Law v. CFPB involves the Consumer Financial Protection Bureau (CFPB), one of a few agencies with a single director who can only be fired by the president for cause. The plaintiffs in this case claim that this unusual arrangement is unconstitutional under a theory known as the “unitary executive.” They also claim that the entire CFPB must be struck down, but the Court is unlikely to sign onto that radical claim.
Assuming that the Court does not toss out the entire agency, the immediate stakes in this case are small and could benefit Democrats — if the president can fire the head of the CFPB, former Vice President Joe Biden could immediately appoint his own choice to lead that agency if he becomes President Biden.
But the long-term stakes are potentially very significant. Most independent agencies — agencies like the Federal Reserve or the Federal Communications Commission — are insulated from the president for good reason. If the president could easily fire members of the Fed’s board of governors, then they could potentially pressure the Fed to juice the economy in an election year and change the outcome of that election. If the president had direct control over the FCC, they could potentially target news networks that run critical coverage of their presidency.
It is unclear whether the Supreme Court will hold that the president has the power to fire members of multi-member boards. But, at oral argument, the Court’s Republican majority appeared very likely to say that an agency cannot be led by a single individual who cannot easily be fired by the president.
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Author: Ian Millhiser
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