COURT OPENS NEW TERM MONDAY

Future uncertain as replacement of Ginsburg looms

The Supreme Court opens its new term Monday at the forefront of the national political conversation, but with its future uncertain and the prospect of deciding a divisive presidential election on the horizon.

With Justice Ruth Bader Ginsburg’s seat on the bench still draped in black crepe, the eight remaining justices will gather via teleconference to tackle a docket that, for now, is not nearly as controversial as the last.

That term saw the court strike a restrictive state abortion law, decide LGBTQ workers are protected by federal anti-discrimination laws, grant temporary relief to undocumented immigrants brought to the United States as children and reject President Donald Trump’s insistence he was above investigation from Congress and local prosecutors while in office.

“The court in this term may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” David Cole, the national legal director for the American Civil Liberties Union, said last week in a briefing for reporters.

There is a foreboding, but “the biggest possible partisan controversy that it might face is a dispute about the election,” Cole continued. “I’m sure that all of the justices are saying the election officials’ Election Day prayer, which is: ‘Dear Lord, let this election not be close.’”

The court already is inundated with emergency lawsuits regarding the voting process, such as what accommodations must be made for voters during the coronavirus pandemic and whether the time frames for receiving mail-in ballots should be extended.

The president has said he wants his choice to fill Ginsburg’s position, Judge Amy Coney Barrett, to be on the court by Election Day, so she would be available to break any ties on a deadlocked court.

That, said Irving Goldstein, executive director of the Supreme Court Institute at Georgetown University Law Center, raises “the possibility that this could become the most tumultuous and divisive term since the Supreme Court decided Bush v. Gore 20 years ago.”

Appropriately enough, the court begins its work Monday with a case about political appointments to the high court — of Delaware.

That state’s history of requiring that its top court be roughly balanced between Democrats and Republicans has won plaudits from business interests and others. But it is being challenged by a lawyer who says that, as a political independent, he and others who do not want to affiliate with the major political parties are denied an opportunity to serve.

The politics of the U.S. Supreme Court are unsettled by the Sept. 18 death of its second-longest serving member, the 87-year-old Ginsburg.

Her absence leaves the court with three liberals chosen by Democratic presidents and five conservatives picked by Republicans.

It will be six conservatives, if the Republican-led Senate uses its slim majority to confirm Barrett by the end of October.

On Nov. 4, when the rest of the country may still be counting the presidential vote, the court returns to unfinished business: what to do when anti-discrimination laws conflict with religious rights.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from samesex couples.

The week after the election, the court hears its third challenge to the legal merits of the Affordable Care Act, the signature domestic accomplishment of President Barack Obama.

The justices will review a federal appeals court decision that found part of the law, also known as Obamacare, unconstitutional. While the court did not pass judgment on whether that doomed the entire law, a coalition of Republican-led states, supported by the Trump administration, is making that argument at the Supreme Court.

Since the Trump administration is not defending the law, a coalition of Democratic-led states and the House of Representatives are on the other side in the case, California v. Texas.

PATRICK SEMANSKY AP The new term of the Supreme Court opens Monday. On the docket is a case from Delaware about appointing new justices to its Supreme Court.