Supreme Court set to release spring opinions during coronavirus pandemic
(CNN) — It’s spring time at the Supreme Court which normally means the justices are just finishing oral arguments and hunkering down to release all outstanding opinions by their self imposed end-of-June deadline.
But there has been nothing normal about this term.
It jolted to a start in October just weeks after Justice Ruth Bader Ginsburg announced she had been treated for a fourth bout of cancer. By January, Ginsburg said she was “cancer free,” but Chief Justice John Roberts was called over to the Senate to preside over President Donald Trump’s impeachment trial. As the justices were getting back into the groove in March, Covid-19 struck, closing the court house doors to the public and forcing the justices to postpone arguments.
Now, as early as Monday, the justices are preparing to release a backlog of opinions in cases concerning LGBTQ rights, DACA, the Second Amendment and abortion. But the pandemic has prompted them to do something they’ve never done before: they will hear 10 cases in May — including Trump’s bid to shield his financial documents — by telephone. And the public is allowed to listen in.
The pandemic may have crippled the nation, but it also served to at least temporarily increase the transparency of the Supreme Court. While real-time audio would not stir much reaction in the other branches of government, it is a big, precedent-setting leap into the modern era for the Supreme Court.
If the justices continue the practice after Covid-19 retreats, it will mean a much broader swath of Americans, not just the few who were lucky enough to secure a rare seat in the chamber, will be able to monitor in real time, potentially opening the institution to a new, modern audience.
As things stand, the justices haven’t sat together for weeks and have conducted their regular conferences by telephone.
But they are releasing opinions on specified dates on their website.
One case that has lingered on the docket since the first sitting concerns whether federal employment law that bars discrimination based on sex includes claims based on sexual orientation and gender identity.
“This could be a watershed moment for fairness and equality,” said Jon Davidson, chief counsel for Freedom for All Americans. “The court’s ruling could confirm that LGBTQ people are protected against employment discrimination across the entire country,” he said.
The case is particularly significant because it comes after Justice Anthony Kennedy, long a champion of LGBTQ rights, is no longer on the court and been replaced by Trump’s nominee Brett Kavanaugh.
In October, the Supreme Court also heard arguments concerning the Trump administration’s decision to phase out the Deferred Action for Childhood Arrivals program, an Obama-era initiative that protects nearly 700,000 young undocumented immigrants who came to the United States as children from deportation.
Plaintiffs — including the University of California, a handful of states and DACA recipients — argue that the phase out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
Lower courts agreed and issued nationwide injunctions that allowed renewals in the program to continue.
The Trump administration appealed the decision to the Supreme Court, and at the time, the President predicted success: “We want to be in the Supreme Court on DACA,” he said. Trump has used the lower court rulings to argue against a push for comprehensive immigration reform.
Another dispute, argued in December, concerns the first major Second Amendment case the court has heard in more than a decade. It targets a New York City law that regulates where licensed handgun owners can take a locked and unloaded handgun.
The New York State Rifle & Pistol Association and individual plaintiffs challenged the law arguing that it was too restrictive and that a New Yorker could not transport his handgun to his “second home for the core constitutional purpose of self-defense or to an upstate county to participate in a shooting competition, or even across the bridge to a neighboring city for target practice.”
The Trump administration has also urged the Supreme Court to overturn the law.
Since the Supreme Court granted the case, however, the law was changed and lawyers for New York say the dispute is now moot.
For the first time, Trump’s two nominees sat for an abortion case on March 4.
At issue is a Louisiana law that has been on hold pending appeal, requiring doctors to have admitting privileges at a hospital within 30 minutes of the facility where the abortion is performed.
Kavanaugh’s place on the court is critical, because it was just three years ago that Kennedy joined with the liberal justices to rule against a nearly identical Texas law. Roberts and Justices Clarence Thomas and Samuel Alito dissented.
In a twist in February 2019 as the law was about to go into effect, Roberts stepped in, joining with the liberals, to block it until the justices could consider whether to take up the case.
Now, all eyes will be on Kavanaugh, but also Roberts, an institutionalist who may not be comfortable with such a quick swerve on the issue after a mere three years.
Louisiana argues that the state law is necessary to provide a higher level of physician competence. The Center for Reproductive Rights, representing an abortion clinic and two Louisiana physicians, argues that the law is medically unnecessary and, if allowed to go into effect, will leave “only one doctor to care for every woman seeking an abortion in the state.”
At the end of each term, the justices usually flee the city for far-flung locations to rest or teach classes. Most of all, they seek a change of atmosphere after the final push of a term.
But again, this year may be different. Not only could deadlines slip but the justices — a majority of whom are 65 and older — are likely to abide by social distancing guidelines and stay close to home.