The coronavirus pandemic has shaken up the U.S. Supreme Court’s 2019-2020 session, delaying hearings and forcing the court to allow livestreaming of oral arguments for the first time. But despite the disruptions, the court has handed down a couple decisions in high-stakes cases this month, with more expected in the coming days and weeks.
“This has actually been an unexpectedly important term, I think, in terms of the number of high-impact cases that the court is hearing or has already decided,” said Alan Chen, professor at the University of Denver Sturm College of Law. He added that many of the key cases deal with four broad themes: anti-discrimination, Trump administration accountability, reproductive rights and police misconduct.
The past two weeks have brought major decisions in the first two categories with the court’s historic ruling on LGBT protections under Title VII and its decision that the Trump administration’s decision to wind down the Deferred Action for Childhood Arrivals program was unlawful.
On June 15, the court handed down its decision in Bostock v. Clayton County, Georgia, consolidated with two other cases, ruling 6-3 that Title VII does protect LGBT workers from job discrimination. While Title VII doesn’t explicitly mention sexual orientation or transgender status as protected characteristics, it does prohibit employers from discriminating against employees “because of sex” and, as Justice Neil Gorsuch wrote in his majority opinion, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“That was a pretty significant ruling, not only because … it was an unexpected outcome,” said Chen, referring to the fact that both Gorsuch and Chief Justice John Roberts voted with their more liberal counterparts, “but also because there are a huge number of federal laws that also prohibit discrimination on the basis of sex, and they use the exact same language as Title VII.”
While the ruling was an “important victory for the LGBTQ community,” there are still unanswered questions about how broadly the court might interpret a religious exemption under the Religious Freedom Restoration Act of 1993, said Scott Skinner-Thompson, associate professor at the University of Colorado Law School. “You can imagine cases not dissimilar to the Masterpiece Cake Shop case where businesses say, ‘Well, I have a religious objection to hiring queer people.’ And the court will have to work that out,” he said.
The other blockbuster case to be resolved this month was Department of Homeland Security v. Regents of the University of California, also consolidated with other cases, about whether the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program was lawful. In a June 22 decision, the court found the DHS’s decision to wind down DACA was judicially reviewable and the agency violated the Administrative Procedure Act by failing to provide proper rationale for rescinding the program.
Although the case revolved around the technicalities of administrative law, court’s decision was a huge, if temporary, relief for hundreds of thousands of DACA recipients, or Dreamers, who have remained in the U.S. following federal court injunctions that have kept the Obama-era policy in place. However, the Dreamers’ fight is far from over, as the cases have been remanded to the DHS, and Trump has already said he plans to renew efforts to rescind the program.
“I think it’s a really significant decision, of course, for the roughly 700,000 immigrants and Dreamers affected by the decision, but also for the rule of law,” said Skinner-Thompson, adding the decision reinforces last year’s ruling on Trump’s proposed changes to the 2020 census that, when it comes to the administration’s decisions, “they cannot cut corners.”
Skinner-Thompson also singled out the court’s April ruling in Ramos v. Louisiana, in which the court concluded the Sixth Amendment requires guilty verdicts in criminal trials be unanimous, as an important decision this term.
Another noteworthy decision that flew under the radar a bit, according to Chen, was Hernandez v. Mesa. The case arose after a U.S. Border Patrol agent shot and killed a Mexican teenager playing on the Mexican side of the border with the U.S. The boy’s family tried to sue the border agent and others, alleging violations of the boy’s Fourth and Fifth Amendment rights. Although the lawsuit would have been able to move forward had the boy been killed on U.S. soil, Chen said, SCOTUS found that because of the cross-border nature of the shooting, the Hernandez family’s claims could not proceed.
The decision came out in February, months before the killing of George Floyd sparked a nationwide wave of protests against police brutality. “I think it would have gotten a lot more attention if it had been decided after [Floyd’s death],” Chen said.
While liberals have been pleased by the court’s rulings in the DACA and Title VII cases, they shouldn’t necessarily get used to it, according to Holland & Hart partner Chris Jackson. Gorsuch’s textualist approach, which he “doubled down on” in his Title VII opinion, could lead him to side with the other conservative justices in upcoming reproductive and religious rights decisions, Jackson said.
“I think that Democrats and liberals are a lot happier with the court right now, over the last couple of weeks,” he added. “I think there’s a decent chance that people are going to feel very differently by the end of the term.”
Jackson also noted that Chief Justice John Roberts and Justice Brett Kavanaugh “seem to be trading places for who’s in the majority the highest number of times.”
“I just think that’s significant because it’s a fairly clear indication that those two are where the center of the court is right now, even though that center has now shifted right fairly substantially,” he said.
While the center has shifted rightward, Skinner-Thompson said Kavanaugh’s dissent in the Title VII case was much milder than the conservative dissents in high-profile LGBT rights cases just five or six years ago.
“If you look back to Windsor and Obergefell, for example, the dissents in those cases authored by Justice Antonin Scalia and Chief Justice John Roberts in some ways contained a lot of vitriol. Not so in this case,” he said, adding the change in tenor reflects a “real shift in both the court’s and society’s approach to LGBT rights.”
The experts noted that the coronavirus has affected court dynamics. After the pandemic caused April oral arguments to be postponed, May’s arguments were held through teleconference, and live audio of the proceedings was made available for the first time. It was a breakthrough for the court, which had long resisted calls from journalists and transparency advocates to make arguments more accessible to the public.
Instead of jumping in whenever they have questions, the justices have been taking turns speaking in order of seniority during the remote hearings, said Skinner-Thompson, adding that Justice Clarence Thomas has been more active during teleconferences than he is in the courtroom.
Aside from its merits docket, the court has weighed in on some urgent matters arising directly from the pandemic.
One involved a controversy over whether the absentee ballot deadline could be extended in Wisconsin’s April election, during which voters cast ballots for a state supreme court seat and presidential primaries for both parties. The night before the election, SCOTUS blocked a lower court’s order extending the ballot deadline.
The court also rejected a California church’s challenge to coronavirus-related restrictions on crowd sizes. The church argued an executive order from the state’s governor violated the First Amendment by limiting the size of religious gatherings, but the court denied the church’s request for an injunction.
Historically, the court has not often exercised its power to weigh in on such emergency requests for stays and injunctions against decisions by lower courts, Chen said, but since the pandemic started, SCOTUS has opted to do so twice.
In a typical year, the court would have wrapped up most of its business by mid-June, but COVID-19 has pushed back the schedule, and several major decisions are expected to be announced in the coming days and weeks.
At the top of many SCOTUS watchers’ lists is the ruling in June Medical Services v. Russo, the first abortion case to reach the high court since Kavanaugh and Gorsuch replaced Justices Antonin Scalia and Anthony Kennedy. In a pair of consolidated cases, the court will decide whether abortion providers have standing to challenge health and safety regulations on their patients’ behalf. It will also consider whether the 5th Circuit’s decision upholding a Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital conflicts with Supreme Court precedent in the 2016 case Whole Woman’s Health v. Hellerstedt.
Also in the realm of reproductive rights, the court will soon rule in a couple of cases about an employer’s ability to opt out of their obligation to provide birth control coverage under the Affordable Care Act due to religious or moral objections.
Many are also watching to see what the court decides in Espinoza v. Montana Department of Revenue, a case about the use of public funds to pay for religious school tuition.
In another set of high-profile cases, Trump v. Mazars and Trump v. Vance, SCOTUS will rule on whether Congress has the power to subpoena the president for certain financial and tax records.
Finally, in a case with Colorado origins, the Supreme Court is expected to release its decision in Colorado Department of State v. Baca on whether states can bind presidential electors to the state’s popular vote when casting electoral-college ballots.
During the telephonic oral arguments in May, so-called “faithless electors” from Colorado and Washington argued in two separate but similar cases that their states had violated the U.S. Constitution by penalizing them for casting their votes for someone other than their states’ 2016 popular vote winner Hillary Clinton. Colorado Attorney General Phil Weiser defended the state’s actions, warning of “chaos” potentially leading to a “constitutional crisis” if members of the Electoral College are allowed to go rogue.