The U.S. Supreme Court begins a new term on Monday amidst a raging political battle over an open seat and a high-stakes push by President Donald Trump to have the justices adjudicate a possible contested election.
“Lurking in the background is the possibility this could become the most tumultuous and divisive term since the Supreme Court decided Bush v. Gore 20 years ago,” said Irving Gornstein, executive director of the Supreme Court Institute at Georgetown University.
The justices face a fall docket of cases with implications for millions of American families and some of the nation’s biggest businesses. They’ll address matters of health insurance, use of force by police, military rape claims, religious freedom, grand jury secrecy, robocalls and faith-based foster care.
At the top of the list is a challenge to the Affordable Care Act brought by Texas and 18 Republican-led states backed by the Trump administration to completely invalidate the law, including protections for people with preexisting conditions. It will be argued Nov. 10 and decided by the end of June 2021.
“The stakes of this case have become only higher amidst the global pandemic. One estimate suggests there are 20 million people taking advantage of the exchanges,” said University of Chicago law professor Jennifer Nou.
Other key questions the court will consider, include whether:
The court has not yet agreed to take up any new cases related to abortion, but there are many in the appellate pipeline, including a pending petition out of Mississippi over that state’s ban on abortions after 15 weeks, which is currently on hold.
It is also expected to rule soon on an emergency petition from the Trump administration seeking to reinstate a Food and Drug Administration rule requiring women to acquire medication abortion pills in-person from a health care provider. The rule was blocked by lower courts during the coronavirus pandemic.
“The court’s docket is not really filled out or as rich [as last term]; on the other hand the biggest cases that ended the year were granted well later,” said Alan Morrison, dean of the George Washington University Law School.
The court’s newest member, once confirmed, will help guide decisions about which cases to take on and how they should be decided. Chief Justice John Roberts, who had been a powerful middle vote on a narrowly divided 5-4 court, may soon be eclipsed by a more solidly conservative majority.
“We’re going to see a considerable and perhaps rapid shift to the right,” said Orin Kerr, a constitutional law professor at University of California, Berkeley.
“Obviously a Justice Barrett will not vote the same way Justice Ginsburg would on a number of cases,” said Edward Whelan, president of the Ethics and Public Policy Center, “but you won’t know until they get there for awhile.”
One of the biggest challenges for the justices could come after Nov. 3 if legal challenges over contested election results end up before the court.
Trump last month said he’s “counting on” the justices to “look at the ballots.” But most observers believe they will try to avoid wading too deeply into an election as much as possible.
“I think the entire court would be skeptical,” said Erin Hawley, a senior legal fellow at the Independent Women’s Law Center. “From time immemorial, judges have been cautious of weighing into intensely political matters.”