New Supreme Court term, starting Monday, could end Chief Justice Roberts’ dominant role
By Adam Liptak
The New York Times|
Oct 04, 2020 at 3:44 PM
WASHINGTON — A short-handed Supreme Court — driven from its courtroom by the pandemic, grieving over the loss of a colleague and awaiting the outcome of a divisive confirmation battle — will return to the virtual bench Monday to start a term that will present Chief Justice John Roberts with a daunting test.
“The chief’s leadership of the court, which just a few weeks ago appeared to be at its zenith, is now in peril,” said Richard Lazarus, a law professor at Harvard who has taught courses on the Supreme Court with Roberts. “An addition of yet another very conservative justice could quickly eliminate the chief’s ability to steer the court toward moderation.”
The court will again hear arguments by telephone, starting with a timely case on the role of partisanship in judging, a subject that will also figure in Senate hearings on the Supreme Court nomination of Judge Amy Coney Barrett, which are scheduled to start a week from Monday. President Donald Trump and Senate Republicans have been working hard to speed her path to the seat left vacant by the death last month of Justice Ruth Bader Ginsburg.
If Barrett is confirmed before Election Day, she is expected to participate in the two biggest arguments on the docket so far: the latest challenge to the Affordable Care Act and a clash between claims of religious freedom and gay rights in the context of foster care.
Ginsburg would almost certainly have voted to uphold the health care law and government programs that prohibit discrimination against gay couples. Barrett’s votes in those cases could provide a telling early sense of how her appointment could shift the direction of the court.
The term that ended in July included a few liberal surprises in cases on abortion, immigration and LGBT rights. It also included the rejection of Trump’s categorical claims that he could defy subpoenas for his financial returns and a string of victories for religious groups. Roberts was in the majority in all of those cases, and he dissented only twice in argued cases in the entire term.
A court that includes Barrett would thrust Roberts from his spot at the court’s ideological center and empower Trump’s three appointees, including two current justices, Neil Gorsuch and Brett Kavanaugh, said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.
“We’d expect the center of power to shift from the chief justice to Justices Kavanaugh, Gorsuch and Barrett, effectively transforming the Roberts court into the Trump court,” Epstein said.
The new term may include “far fewer blockbusters and far fewer unexpected results” than the last one, said Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute. “But lurking in the background is the possibility that this could become the most tumultuous and divisive term since the Supreme Court decided Bush v. Gore 20 years ago and effectively determined who would be president of the United States.”
The court has already ruled on many disputes arising from the 2020 election, and there will be more. Trump has said he is eager for Barrett to be seated in time to hear postelection challenges.
Lazarus said the court’s last term had reassured the public that “there was some truth to the chief justice’s admonition that the justices, while on balance very conservative, were not political partisans.”
“All that hard-earned goodwill may soon be in tatters because of how President Trump has responded to Justice Ginsburg’s passing,” he added. “No matter how hard the chief and his colleagues try to stay above the political fray, it is a battle they cannot win when the president treats his nominees to the court as political loyalists.”
Even if she is confirmed by Election Day, Barrett will miss the court’s October sitting, which will include significant cases on police violence, abuse of the no-fly list and a $9 billion copyright dispute between Google and Oracle. Under the court’s usual practices, new justices do not participate in cases if they were not present for the arguments.
The justices are still adjusting to hearing arguments by telephone. They ask questions one at a time, in order of seniority, a practice that has robbed the arguments of their dynamic quality in the courtroom, where justices respond to and build on their colleagues' points.
“There are pluses and there are minuses,” Justice Stephen Breyer, now the senior justice of the court’s liberal wing, said in remarks last month at George Washington University.
The forced march of serial questioning imposes a kind of order, he said. “Everybody hears what everybody else is saying and what the answers are, and they pay close attention,” he said.
“The minus is, I sometimes think it’s less fun,” he said. “You can’t get the dialogue.”
The last time the court had eight members, after the death of Justice Antonin Scalia in 2016, it set a modern record for consensus. But that court was evenly divided between Republican and Democratic appointees and may have been more inclined to compromise.
Scalia’s seat was vacant for more than a year, while Ginsburg’s seat may be filled in short order, creating a 6-to-3 majority for Republican appointees.
How that majority acts may depend on the election, Epstein said, noting proposals from liberals to expand the size of the court if Democrats win the White House and control of both houses of Congress.
“On the one hand, should the Democrats take control of government, the right side of the court might be wary of doing too much too fast out of fear of court packing, in which case they could lose their majority or worse,” Epstein said. “On the other hand, a Republican win in November might well empower the conservatives to pursue their projects with speed.”
Breaking News Alerts Newsletter
As it happens
Get updates on the coronavirus pandemic and other news as it happens with our free breaking news email alerts.
Those projects, she said, include bolstering the role of religion in public life, expanding gun rights, restricting abortion and cutting back on the power of the administrative state.
In the short term, the justices will try to avoid controversy, said Allison Orr Larsen, a law professor at William & Mary.
“In periods of transition, many of the justices — and the chief justice in particular — will try to keep a low profile and stay out of the political spotlight as much as possible,” she said. “It may not always be possible this term, particularly with election disputes on the horizon, but I do think in transition years we should expect the justices to keep their heads down, even if it may not be indicative of long-term behavior.”
Gregory Garre, a lawyer with Latham & Watkins who served as solicitor general in the George W. Bush administration, said the court always took time to adjust to a new justice, causing it to be cautious.
“It is likely that the justices will want to get a better sense of where their new colleague lines up on issues before taking on particular cases,” Garre said. “In addition, the court as a whole is likely to be sensitive to political fallout from the latest confirmation saga, especially if there is a progressive administration and Congress waiting in the wings.”