The 2019-2020 term is going to be a big one.
The 2019-2020 term of the Supreme Court of the United States is going to be a big one.
With yet another abortion case, two significant immigration cases, a big Obamacare case that’s looming, and three LGBTQ discrimination cases — which combined could produce the Court’s biggest employment discrimination decision in 30 years — a lot could be decided on behalf of America this year.
Ian Millhiser, Vox’s senior correspondent for the Supreme Court, joined this episode of Today, Explained to break down the significant cases the court is likely to take up.
In one Louisiana case, a state law requires doctors to have admitting privileges at local hospitals in order to perform abortions. But it is often very difficult for abortion providers to obtain this credential. Millhiser pointed out that though the court already ruled on a similar case out of Texas back in 2016, this duplicate Louisiana case is being brought before the court because Brett Kavanaugh’s confirmation shifted the ideological leaning of the nine justices.
“The change here is that the key fifth vote in that decision was Justice Kennedy. Justice Kennedy has retired and his replacement Brett Kavanaugh is much more conservative on these issues. And they think…that they have the majority. And the fact that they took this case suggests that the majority is ready to go and it’s ready to, if not overrule Roe v. Wade entirely, at least to say that states have tremendous power to limit the right to an abortion.”
In the matter of immigration, there’s a pending case that will decide whether the Trump administration acted properly when it decided to wind down the Deferred Action for Childhood Arrivals (DACA) program. “I think it’s very likely that they’re going to say yes, they can do that,” Millhiser explained. A second immigration case “literally deals with whether a border guard can get away with shooting someone across the Mexican border.”
As for LGBTQ issues, three cases regarding employee discrimination for two gay men and a trans woman, Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, are bound to have a huge impact on the lives of all Americans while simultaneously testing the court’s varied beliefs on textualism.
As described by the late justice Antonin Scalia, “Textualism means you’re governed by the text. That’s the only thing that is relevant to your decision.”
Today, Explained host Sean Rameswaram put it another way when he said the court is currently in a “sort of dichotomy between whether this is about the law or whether this is about politics.”
Listen to Rameswaram’s conversation with Millhiser about the state of the Court, what we can expect this term, and how it all might impact the 2020 presidential election. Below, we’ve shared a lightly edited transcript of their conversation.
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Ian Millhiser
This is going to be a huge term. They’ve got a big abortion case. They’ve got two big immigration cases, one of which literally deals with whether a border guard can get away with shooting someone across the Mexican border.
There’s a big Obamacare case looming that they might have to take. And they’ve got a huge LGBTQ discrimination case which is probably the biggest employment discrimination case to reach the court in 30 years.
Sean Rameswaram
Let’s start with this abortion case that the Supreme Court decided to hear just on Friday.
Ian Millhiser
So this is a Louisiana case involving a state law that requires doctors to have admitting privileges at a nearby hospital in order to perform an abortion.
And the broader context here is there are these things, abortion advocates often refer to them as TRAP laws. They look like regulations to make it easier for women to get into a hospital in case they have some kind of complication. But here’s the thing: The complication rates for abortion are vanishingly small. It’s less than 1 percent of women. So it’s not really something that does anything to help anyone’s health care. It just makes it really hard for doctors to get a credential.
If fewer doctors are able perform abortions that means there’s fewer abortions in that state. So it’s kind of a backdoor way to prevent abortions from happening.
Sean Rameswaram
And the Supreme Court’s certainly heard many challenges to Roe v. Wade. Is this one similar to one that’s come before?
Ian Millhiser
People might be having deja vu and they should be because parts of this law are literally word for word identical to a Texas law that the Supreme Court struck down three years ago and it was the same thing. Justice Breyer wrote a majority opinion where he listed all the reasons why these laws don’t actually protect anyone’s health.
And the change here isn’t that this law is particularly different. The change here is that the key fifth vote in that decision was Justice Kennedy. Justice Kennedy has retired and his replacement Brett Kavanaugh is much more conservative on these issues. And they think right now that they have the majority. And the fact that they took this case suggests that the majority is ready to go and, if not overrule Roe v. Wade entirely, at least to say that states have tremendous power to limit the right to an abortion.
Sean Rameswaram
But I do remember Justice Kavanaugh, in his confirmation hearings, saying that he believed that Roe v. Wade was settled law.
Ian Millhiser
Judges say a lot of things at their confirmation hearings. There’s kind of a script that they’ve learned to follow so that they don’t express an opinion on Roe v. Wade. But shortly before he was nominated he actually went to a conservative think tank, the American Enterprise Institute, and praised Justice Rehnquist’s dissent in the Roe v. Wade opinion.
So when he wasn’t in his confirmation hearing he gave a very different impression about what he thinks about Roe. And that’s odd. For most of my career, if someone thought that they were in the running for a Supreme Court nomination, they do everything they could to not get a record on abortion because they didn’t want it to come up in their confirmation hearings.
The fact that Kavanaugh did that tells you a great deal about how politicized the Court has become. And now, at least on the Republican side, if you want to become a justice, you’ve got to signal with big neon lights, ‘Hey, I’m your guy on the following list of issues.’ So Kavanaugh must have thought that not having a record on abortion was a liability and he needed to convince the people who pick Republican justices that they didn’t have to worry about that being a liability.
Sean Rameswaram
Has Gorsuch done anything like that? Do we know where he stands on abortion?
Ian Millhiser
I’d be very surprised if Gorsuch doesn’t vote to overrule Roe. Among other things, when he was a lower court judge there was a lower case that came up involving an attempt to defund Planned Parenthood. Gorsuch pretty strongly backed the side that wanted to defund Planned Parenthood. So I don’t have too many doubts about how he views abortion.
Sean Rameswaram
And in addition to divisive issues like abortion, the Supreme Court will also take up things we all agree on, like immigration.
Ian Millhiser
That’s right. There are two big cases that touch on immigration. The first is a case asking whether the Trump administration can wind down the DACA program. I think it’s very likely that they’re going to say yes, they can do that.
Sean Rameswaram
Doesn’t that program originate from the White House anyway, with Obama?
Ian Millhiser
So this is a program, it’s called Deferred Action for Childhood Arrivals. About 700,000 undocumented immigrants are allowed to stay in this country, they’re allowed to work while they’re in this country and they get certain federal benefits.
The Trump Administration decided to wind it down. And what’s interesting about this case is there’s a big mystery as to why the Supreme Court decided to take it in the first place. If you change a policy, typically the federal government has to explain why they did so and when they explain why they do so if they give a policy explanation we say this is a bad idea for these reasons, then courts don’t review that.
They typically are not allowed to review that if they give a legal reason, if they say they think that the program is illegal. Courts are allowed to review that determination. And the only thing that happened here is that the Trump administration gave a legal justification and not a policy justification.
So what’s puzzling about this case is that the Trump administration has the power to wind it down if they want to. I don’t know why they haven’t done that. I mean, maybe it’s incompetence. Maybe it is that they want the courts to actually consider the legal question and they want the Supreme Court to hold that DACA is itself illegal because if the Supreme Court were to say that, that would mean that we could never have DACA ever again.
Sean Rameswaram
And there’s another immigration case in addition to that one.
Ian Millhiser
There is. This is only tangentially related to immigration but it really goes to the values underlying our immigration system. It’s called Hernandez v. Mesa.
There’s a bit of disagreement as to what happened in the events leading up to this but the border guard took out his gun, fired two shots across the Mexican border, and killed a 15-year-old boy. And the question here is whether that boy’s family can sue the guard and get money damages directly from that border agent.
The lower court in this case said, “These border guards are doing really important national security work. They’re keeping people out of the country that we don’t want in the country and we don’t want them to hesitate when they have to make a split second decision. And if we impose this kind of liability on them, they might hesitate and that would be bad.”
So it’s really just a case about conflicting values. Do we believe that federal agents need to be accountable and that with their power comes great responsibility? Or do we believe that they’re doing such important work that they should have broad immunities that protect them from consequences when they do something wrong?
Sean Rameswaram
And then there’s Obamacare. Again.
Ian Millhiser
So the Affordable Care Act as it was originally enacted has an individual mandate. If you don’t have health insurance you have to pay higher taxes.
The tax law in 2017 reduced those taxes to zero. There’s a lower court decision [in which U.S. District Judge Reed O’Connor of Texas ruled to eliminate all of Obamacare’s provisions, including Medicaid expansion, protections for people with preexisting conditions, and the ability of children to stay on their parents’ insurance until age 26.] As for the legal issue, it’s hard for me to be hyperbolic in describing how ridiculous this case is.
By reducing the tax to zero, that made the zeroed-out mandate unconstitutional. And because the law now contains this zeroed-out mandate which is unconstitutional, the proper remedy is to strike down the entirety of the Affordable Care Act root and branch.
[And] don’t forget the LGBTQ cases. This [transgender] case is massive. There’s so many layers…
So we’ve got three cases being argued tomorrow. The first two involve gay plaintiffs who allege that they were fired because of their sexual orientation. And the issue in that case is whether you can be fired for being gay or you know for sexual orientation generally.
So the two cases are Altitude Express v. Zarda and Bostock v. Clayton County. t’s two gay men who claim that the reason that they lost their jobs is because they are gay. One guy was a government worker in Georgia. The other was a skydiving instructor from New York.
And the facts of this case are a little weird.
Sean Rameswaram
The skydiving instructor?
Ian Millhiser
Yeah. He would do tandem jumps with people who weren’t experience skydivers and apparently a thing that he liked to do when he was strapped to a woman is he would tell that woman that he is gay in a way of I guess reassuring her that like there wasn’t a sexual interest there.
And somehow that led to the employer, at least he alleges, finding out that he was gay and deciding that they did not want to have this person working for them.
Sean Rameswaram
You said there are three cases on this issue being sort of lumped together tomorrow. What’s case three?
Ian Millhiser
So this case comes out of Michigan and involves a funeral home, and a woman [Aimee Stephens] who was fired from that funeral home because her boss has religious objections to the fact that she is transgender.
And the boss said that men have to wear you know male suits and women have to wear female suits. And he decided that she is a man, so she must wear the male suit and tie. And she did not present as a man then she could not work for his funeral home.
[The Civil Rights Act of 1964] says it is illegal to fire someone because of sex. So basically these cases are a tension between whether the text the law controls the case or what people were actually thinking in 1964 controls the case.
Sean Rameswaram
Because it was about women.
Ian Millhiser
The federal government banned hiring of gay people entirely until 1975. So I don’t think anyone thinks that in 1964 Congress passed this law intending to prevent gay or trans discrimination. That said, the words of the law are really expansive: no discrimination because of sex.
I should clarify that sex here means gender not sexual intercourse. And if sex is in any way part of the calculus, it’s illegal.
Sean Rameswaram
Sounds like you’re talking about what the Supreme Court types like to call ‘textualism.’
Ian Millhiser
That’s part of what makes this case so interesting is you have a number of very conservative members of the Supreme Court. You know Clarence Thomas, Neil Gorsuch who say —
Sean Rameswaram
People who live and die by the letter of the law.
Ian Millhiser
They say it doesn’t matter what Congress thought it was doing in 1964. The only thing that matters is the text. And so this is a case of whether we can really trust these guys. You know when Neal Gorsuch says that the only thing that matters is the text, is he going to stick to that principle when the text points in a liberal result, or is he going to say, ‘Oh well, I’m going to make up some other reason to get the result that I want in this case.’
Sean Rameswaram
You’re saying this will be a test of whether or not they will allow their sort of legal theory to serve a progressive end.
Ian Millhiser
Ultimately what makes these cases so important is that they will tell us whether the Supreme Court is engaged in law or whether it’s just engaged in politics.
Because if this is a case about law, the Supreme Court said in the 1980s that when you’re applying the Civil Rights Act of 1964 you have to look at the text, it doesn’t matter what Congress thought it was doing in 1964. That’s what the precedents say. You have you know at least two conservative justices who have said over and over again the only thing that matters is textualism.
And so we’re going to find out whether they mean it. We’re going to find out whether they’re willing to apply their principles when it hurts.
Sean Rameswaram
It’s funny that you present this sort of dichotomy between whether this is about the law or whether this is about politics when this term it sounds like the Supreme Court is going to have to weigh in on the most divisive issues in our politics: abortion, immigration, Obamacare, LGBT rights. How much do you think that’s weighing on Chief Justice John Roberts and his fellow justices?
Ian Millhiser
That is the single most important question in Supreme Court land right now. I mean there is a reason why Merrick Garland is not on the Supreme Court. There is a reason why despite all of the allegations that came out with Christine Blasey Ford against Brett Kavanaugh that Republicans thought it was so important to get their guy there. And the reason why is because it matters who sits on the Court. You know we get very different policy and political outcomes depending on who sits on the Court. And if the Court is engaged in law, then I think it’s okay for them to have a fair amount of power because the law was written down and often it only has one clear meaning. But if all it really is is politics all the way down, it calls the question of why we have the Supreme Court. Because they’re not elected. Why should they have this power if at the end of the day all that they’re doing is engaging in politics?
Sean Rameswaram
And it also just makes me wonder, I mean a lot of these decisions come towards the end of the term [in] June of 2020. Which will be mere months before the presidential election. Can the politics of the Supreme Court end up influencing this next election?
Ian Millhiser
Well, you know, there’s a lot of people who think that the reason why Donald Trump got elected is because Republicans cared so much about making sure that when Justice Scalia died he would be replaced by a Republican and not by a Democrat, that they were willing to hold their nose and vote for Donald Trump. The Supreme Court is probably going to hand down a lot of decisions in June that are going to remind Republican voters why they cared so much about the Supreme Court and why they might want to vote for Donald Trump again.
Sean Rameswaram
Could a decision on abortion or Obamacare or LGBT rights just as easily energize Democrats?
Ian Millhiser
Yeah, I mean the one thing that I think this term is going to make clear is how high the stakes are when it comes to the Supreme Court.
Historically courts have been something that have really charged up Republicans and that Democrats just haven’t paid that much attention to. And I mean I’ve been in this business for 12 years now and I’ve yet to find the magic key that causes Democrats to realize that the courts are very very important. But if anything can do it, it’s going to be this extraordinarily contentious term that we’ve got coming up.
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Author: Delia Paunescu
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