Supreme Court opens new term at the center of America’s bitter political divide

WASHINGTON — The Supreme Court opens its new term Monday at the forefront of the national political conversation, but with its future uncertain and the unwelcome 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 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.

But President Donald Trump has made it clear he believes there will likely be litigation over the results.

"I think I'm counting on them to look at the ballots, definitely," Trump said during Tuesday's debate with former vice president Joe Biden. "I don't think — I hope we don't need them, in terms of the election itself, but for the ballots, I think so."

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. But those plans are also uncertain, following the news that the president had been hospitalized after contracting the coronavirus and some GOP senators had tested positive for it after last weekend's Rose Garden ceremony announcing Barrett's nomination.

The 48-year-old judge and law professor from the University of Notre Dame is the ideological opposite of the woman she would replace. Her confirmation to the lifetime appointment would move the ideological center of the court to the right and could cost Chief Justice John Roberts Jr. the pivotal role he played last term. He alone was in the majority for almost all of the court's major decisions, whether the outcome cheered conservatives or liberals.

But it could also be that, for the short term, the court takes on a less ambitious agenda. The court with a new member tends to tread cautiously at first, although eventually Barrett would almost ensure a majority that looks more skeptically at abortion rights, gun control, affirmative action and the power of government agencies.

Those issues are largely missing from the court's docket at this point, though it continues adding cases through January.

If the White House timeline for confirming Barrett holds, she would be in place for what are now the biggest controversies on the court's docket.

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.

The challenge, led by Texas Attorney General Ken Paxton, arose from a decision in 2017 by Congress to reduce the penalty for a person not buying health insurance — the so-called individual mandate — to zero. But lacking the votes to bury Obamacare, Congress left the rest of the law intact.

Paxton argues that Congress has removed the essential tax element that Roberts cited in finding the law constitutional in 2012, when he joined with the court's four liberals to save the program. A district judge in Texas agreed, as did two of three judges on a panel of the U.S. Court of Appeals for the 5th Circuit.

But the dissenting judge said the question of whether the individual mandate is constitutional is "purely academic." What matters, said Judge Carolyn Dineen King, is the decision by the 2017 Congress that "left the rest of the Affordable Care Act in place."

Ginsburg was part of the majority in both previous challenges to the ACA, and Barrett has written critically about the legal underpinnings of Obamacare and Roberts's decisions upholding it.

But even lawyers who have been supportive of past challenges say this one seems a long shot.

Justices across the ideological divide have said that when the court finds an unconstitutional element in the law, it must look carefully at whether the rest of it can be severed and remain in place.

The court found that was the case twice last term, with Roberts writing one such opinion and Justice Brett Kavanaugh, one of Trump's two appointees, writing another.

"Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute," Kavanaugh wrote.

Paul Clement, who was a solicitor general for President George W. Bush and who made the case against Obamacare at the Supreme Court in 2012, said, "It's a very different case this time around."

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 same-sex couples.

The U.S. Court of Appeals for the 3rd Circuit ruled the city was within its rights to end the contract and was not targeting the Catholic agency for its religious views. Instead, the court said, the city was insisting that those with whom it does business agree with its nondiscrimination policy.

Catholic Social Services, which has provided foster care services for decades, said the city's decision forces it either to violate religious views about marriage or forego providing the kind of services essential to its mission. It notes the city contracts with other agencies who are happy to work with same-sex couples.

The agency is represented by the Becket Fund for Religious Liberty, which is asking the court to reconsider an important 1990 decision written by Justice Antonin Scalia.

The ruling in Employment Division v. Smith said there was no special protection from laws that apply equally to everyone. "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate," Scalia wrote.

But the decision has become unpopular, and the court's most conservative members have said they are open to reviewing it.

The case, Fulton v. City of Philadelphia, raises questions that the court largely sidestepped in 2018, when it found other reasons to rule for a Colorado baker who refused to discuss making a wedding cake for a gay couple, even though a state law prohibited discrimination based on sexual orientation.

Legal experts said there might be similar offramps in the Philadelphia case, if justices are not yet ready to declare a winner in such a contentious area of the law.