Key issues’ fate may hinge on new justice
To start, she could steer changes in election law
Newly confirmed Supreme Court Justice Amy Coney Barrett can weigh in soon on the law providing health insurance for millions of Americans. Also on religion vs. gay rights, access to abortion, states’ coronavirus restrictions on churches and public gatherings, and congressional access to Special Counsel Robert Mueller’s report on President Trump.
But first on the docket is next week’s presidential election. And the first stop is in Pennsylvania.
Last week, the Supreme Court, in a 44 deadlock, left intact a ruling by the Pennsylvania Supreme Court that relied on the state’s Constitution to allow election officials to count ballots postmarked by election day and received three days later. But the case remained on the docket of the nation’s high court, and on Monday, Republicans asked the justices to review the issues and issue a ruling before election day.
The deciding vote could be cast by Barrett, who refused during her confirmation hearings to answer Senate Democrats’ questions about election issues or promise to recuse herself from cases that could decide the election of the president who nominated her. The same president has insisted that “we need nine justices” to fend off the “scam” of mailedin ballots.
A 54 ruling that overturns the Pennsylvania court and disqualifies ballots received after Nov. 3 could have immediate effects in many other closely contested states, said Erwin Chemerinsky, the law school dean at UC Berkeley.
Democrats have relied on state laws to extend ballot deadlines because the Supreme Court has limited federal courts’ authority to do so in the months before an election, Chemerinsky said,
citing the court’s lastminute ruling in a Wisconsin case in April. He said four conservative justices have argued that states cannot use their own constitutions to grant additional protections for voting rights in national elections, and “I predict Barrett will agree with them.”
He also recalled that in the Bush vs. Gore ruling that decided the 2000 presidential election, Chief Justice William Rehnquist issued a concurring opinion — joined by Barrett’s mentor, Justice Antonin Scalia — saying the Florida Supreme Court was wrong when it interpreted state election law to allow the counting of disputed ballots.
Attorney Tom Spencer, who took part in Bush vs. Gore and now is president of the conservative Lawyers Democracy Fund, agreed the Pennsylvania case could mirror 2000.
“At issue is whether states have the constitutional right to so significantly lower the bar of ballot security and integrity” by accepting ballots after election day, Spencer said.
By fending off questions about election cases during her confirmation hearing, Barrett left open the possibility that she would disqualify herself, as justices on the largely selfregulated court sometimes do when faced with conflicts of interest. But Bernadette Meyler, a Stanford constitutional law professor, said the nominee effectively gave an answer by her presence.
“The fact that she is accepting an accelerated nomination process says to me she wouldn’t have qualms about the election” and taking part in rulings that affected it, Meyler said.
Other than the election, the most prominent issue the court faces in the early weeks of its 202021 term is the fate of the Affordable Care Act, President Barack Obama’s 2010 law that provides federally subsidized insurance to 23 million Americans while restricting insurers’ authority to deny coverage.
The court has twice upheld the law on 54 votes, with Chief Justice John Roberts joining the four more liberal justices in ruling that Congress could require Americans to buy insurance or pay a tax penalty. Barrett, in a law review article shortly before Trump appointed her to a federal appeals court in 2017, said Roberts had “pushed” the law “beyond its plausible meaning” to save it.
The upcoming case is somewhat different, because congressional Republicans passed a new version of the law in 2017 that eliminated the tax penalty, allowing individuals to refrain from obtaining coverage without consequences.
Barrett, while refusing to answer Democrats’ incessant questions about her view of the law, agreed at her hearing that the court could address the narrower issue of whether the insurance mandate is “severable” from the rest of the law — suggesting a possible way to uphold it. Democratic leaders have nevertheless predicted she would be part of a majority to overturn the health law.
Other issues awaiting the new justice include:
Religion and gay rights: The day after election day, the court will hear arguments over Philadelphia’s refusal to provide public funds to a Catholic fostercare agency that refuses to place foster children with samesex parents.
Lower courts have ruled in the city’s favor, relying on the Supreme Court’s 1990 ruling — written by Scalia — that states with laws that applied equally to all residents did not have to make exceptions to accommodate religious beliefs.
Conservative justices have called for the court to overturn that ruling. That will likely be up to Barrett, who previously served on the board of a Christian school that denied admission to children of samesex parents.
Abortion: Barrett, who belonged to the Faculty for Life group at Notre Dame University, has been publicly critical of Roe vs. Wade, the 1973 decision that declared a constitutional right to abortion. The court’s current docket does not include any direct challenges to Roe, but the justices could scale it back considerably by agreeing to review and uphold a Mississippi law banning abortions after 15 weeks of pregnancy, long before a fetus is viable. Other potential cases could restrict access to abortion clinics and selfadministered abortion medication.
COVID: With the deciding vote from Roberts, the court voted 54 in May to let California restrict attendance at inperson religious services during the pandemic, and again in July in a case from Nevada. A slew of similar cases are heading for the court and could turn out differently after Barrett’s confirmation. Mueller investigation: The court has scheduled a Dec. 2 hearing on House Democratic leaders’ request for grand jury transcripts and other material withheld from the official release of Mueller’s report in April on Russian involvement in the 2016 presidential election. In July, the court issued a pair of 72 rulings rejecting Trump’s claim of legal immunity from outside scrutiny of his financial records and allowing New York prosecutors to seek release of the president’s tax returns. The rulings appeared to show judicial skepticism of the government’s claims of the need for secrecy.
Immigration: The court has allowed Trump to continue building his border wall and to require thousands of asylum seekers to wait in dangerous conditions in Mexico until U. S. immigration courts hear their cases, a timetable pushed back further by the administration’s border shutdown. The justices have agreed to hear arguments on both issues, but whether those hearings take place will most likely depend on the outcome of the election.