On Election Night 2016, Republicans came home for Donald Trump. After nearly a year of expressing disgust and dismay at Trump’s rise to prominence, Republicans – both ordinary voters and party elites – swallowed their reservations and came out en masse for their nominee.
Why did they do it? And why have Congressional Republicans stayed so loyal to Trump in the face of his repeated violations of the country’s democratic norms? Every Republican has their own story, but for the party as a whole, it comes down to one word: judges.
Since taking office in January of 2017, Donald Trump has successfully appointed 150 judges to lifetime seats on the federal bench. The two most prominent and influential of those judges were Neil Gorsuch and Brett Kavanaugh, whose nominations to the Supreme Court gave conservatives a durable 5-4 majority on the nation’s highest court.
And as the next Supreme Court term begins today, that majority will have an opportunity to flex its muscles on a series of important cases. And some legal analysts are already warning that the upcoming term could be catastrophic for progressives – and a triumph for conservatives.
Here are some of the issues the court will hear, starting today. Decisions in some of these cases will be handed down in June, 2020 – right in the middle of the presidential election campaign.
One of the most controversial cases the Court has accepted is June Medical Services v. Gee, a case concerning a deeply restrictive Louisiana abortion law. This isn’t the first time the Court has taken up the case – a 5-4 majority on the Court temporarily blocked the law in a February ruling.
However, that does not mean it will permanently strike down the law when it hears arguments this term. Chief Justice John Roberts joined the Court’s four liberals in temporarily blocking the law in February. The Louisiana law, which requires doctors performing abortions to acquire admitting privileges at a hospital located within 30 miles of their clinics, is nearly identical to a Texas law that the Court struck down in the 2016 case Whole Women’s Health v. Hellerstedt.
However, Whole Women’s Health was decided after the death of Justice Antonin Scalia and with Justice Anthony Kennedy still on the bench. Scalia and Kennedy have been replaced by Gorsuch and Kavanaugh, respectively, and the Court’s newest justices voted in February to let the Louisiana law take effect.
June Medical Services, then, will come down to Chief Justice Roberts, who dissented in Whole Women’s Health. Will Roberts vote to uphold recent precedent, or will he prove willing to strike down a ruling that was handed down as recently as 2016? If he chooses the latter, it will be a decision that will go a long way toward hollowing out the benchmark Roe v. Wade ruling.
The Insanity Defense
In Kahler v. Kansas, the court will have to answer a very simple question: can states abolish the insanity defense?
Kansas is one of five states that has effectively eliminated the insanity defense, though the state argues that it has merely “re-defined” the insanity defense. Kahler and his legal team argue that Kansas’ decision violates the 8th and 14th Amendments and should be struck down.
If Kahler wins, the Court’s decision (depending on its scope) would likely invalidate laws abolishing the insanity defense in Kansas, Alaska, Idaho, Montana and Utah.
Discrimination Against LGBT Americans
The court will hear multiple cases that bear on an important question – whether Section VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or gender identity.
Title VII prohibits employers from discriminating against Americans on the basis of race, religion or sex. It’s the last demographic identity that’s at issue in this term. The controversy is this: does discriminating against employees because they’re gay or transgender constitute discrimination on the basis of sex?
Plaintiffs in three cases – Altitude Express v. Zarda, Bostock v. Clayton County, Georgia and R.G. And G.R. Harris Funeral Homes Inc v. Equal Opportunity Employment Commission – say yes. They argue (and multiple federal courts have agreed) that to discriminate against employees because of sexual orientation or gender identity is to discriminate on the basis of sex because it’s making an employment decision based on a sex-based stereotype. So, for example, men are expected to date women and vice versa. Firing a man because he’s dating another man is firing him because he runs afoul of a stereotype and is prohibited by Section VII.
These are three cases where the retirement of Justice Kennedy could be felt most keenly. While Justice Kennedy was a conservative, he consistently sided with LGBT plaintiffs, even writing the majority opinion in the case legalizing same-sex marriage across the country. Advocates for LGBT Americans fear that without Kennedy on the bench, the Court is poised to decide by a 5-4 margin that employers can discriminate on the basis of sexual orientation and gender identity.
In 2012, President Barack Obama created a program called Deferred Action for Childhood Arrivals, which immediately became known as “DACA.” Under the program, individuals brought to the United States illegally when they were under the age of 16 could apply for deferred action from deportation if they met certain requirements. While DACA recipients – who, by some estimates, eventually numbered nearly 800,000 – did not have a path to citizenship, they did have a measure of certainty and security in knowing that they were not in danger of deportation.
Things changed dramatically with the election of Donald Trump. The Trump Administration announced in September of 2017 that it was ending the program, claiming it was unconstitutional.
That decision was immediately challenged in court, delaying the effect of the administration’s repeal. Multiple judges have ruled in favor of the plaintiffs, and after repeatedly punting on the case, the Supreme Court has agreed to take it up for this term.
The justices could go a number of ways. They could rule that Trump has the authority to repeal his predecessor’s executive actions while leaving untouched the central question of DACA’s constitutionality. Alternatively, they could simply rule that DACA itself is unconstitutional, which would prevent a future administration from reinstating the program.
Regardless, hundreds of thousands of young men and women will have their futures impacted in a major way by the Court’s ruling in Department of Homeland Security v. Regents of the University of California.
Suing Federal Law Enforcement
Hernandez v. Mesa is an emotionally charged case that will speak to an important but seemingly dry legal issue – the extent of the qualified immunity to legal action federal law enforcement officers have in cases of police brutality.
In 2010, a Border Patrol agent fired his weapon across the border with Mexico and shot a 15-year-old Mexican boy in the face. The boy died, and his parents filed a lawsuit alleging a violation of the boy’s Fourth and Fifth Amendment rights.
Hernandez is a complicated case, one the Court already considered and remanded back in 2016. It relates to a 1971 case in which the Court held that victims of Fourth Amendment violations do have a cause for action against the federal government. However, the Court has been systematically narrowing the contours of that case, and if the justices rule against the Hernandez family they would effectively close off any legal options for the victims of federal police brutality.