Chemerinsky: Looking back at the Supreme Court in 2020
Erwin Chemerinsky. Photo by Jim Block.
Everyone, I am sure, will be glad to bid farewell to 2020 and looks forward to better things in 2021. As the year draws to a close, the COVID-19 pandemic is surging with a catastrophic loss of lives and serious illnesses, but there is the hope of vaccines soon becoming widely available. What were the most important stories about the U.S. Supreme Court during this plague year?
The death of Ruth Bader Ginsburg and the confirmation of Amy Coney Barrett
Both for the short-term implications and its long-term consequences, this was clearly the most significant development of 2020 for the U.S. Supreme Court. Justice Ruth Bader Ginsburg’s death on Sept. 18 deprived the court of a passionate liberal voice and a justice who had become a popular icon like no other in American history. The confirmation of Amy Coney Barrett, just slightly more than a month later on Oct. 26, replaced Ginsburg with someone who could not be more ideologically different.
It is important neither to overestimate nor understate what Ginsburg’s departure will mean. There were five conservative justices appointed by Republican presidents before Ginsburg’s death. In 5-4 decisions split along ideological lines, Ginsburg was much more likely to be in dissent than in the majority.
In the October 2019 term, there were 14 5-4 decisions out of 53 cases. In 10 of them, the majority was Chief Justice John G. Roberts Jr., Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh. Had Barrett been on the court, these likely would have been 6-3 rather than 5-4. Barrett’s presence would have changed the margin, but not the result in these cases.
However, there were two decisions that were 5-4 with the majority being Roberts, Justices Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan. These were important cases that struck down a Louisiana restriction on abortion and invalidated President Donald Trump’s recission of the Deferred Action of Childhood Arrival program. Both likely would have come out differently with Barrett on the bench.
More generally, replacing Ginsburg with Barrett makes the chance of liberal victories much less likely on the Supreme Court. The four liberal justices needed to attract only one conservative justice to garner a majority. Occasionally, as in the two cases last term, they could attract Roberts as a fifth vote. There were other notable instances of this in prior years, such as in the high court’s decisions upholding the Affordable Care Act and in preventing President Trump from adding a question about citizenship to the 2020 census.
Without Ginsburg, it will be much more difficult for Breyer, Sotomayor and Kagan to be in the majority. It is not simply the challenge of getting two votes rather than just one; it is that there are five staunch conservatives and one moderate conservative, and getting two votes from the current group for a liberal result will be daunting.
The ideological composition of the current court is the crowning achievement of a conservative political movement that began with President Richard Nixon’s campaign against the Warren Court in 1968. A central theme of Nixon’s presidential campaign was to end the liberalism of the Warren Court, and ever since, conservatives have sought a solid, staunch conservative majority. Amy Coney Barrett was 48 years old when she was confirmed. If she remains on the court until she is 87, the age at which Ginsburg died, she will be a justice until the year 2059. Roberts is 65 years old, while Thomas is 72, Alito is 70, Gorsuch is 53 and Kavanaugh is 55.
It is easy to imagine at least five of these justices being on the court for another decade or two. In other words, the effect of confirming Barrett is that this seat on the Supreme Court will be held by a conservative justice for a very long time to come and she is likely to be part of a conservative majority for at least a substantial part of those years.
The court stays out of the 2020 presidential election
Many predicted the outcome of the presidential election would be resolved, as it was in 2000, by the Supreme Court. Indeed, President Trump, speaking a few days after Ginsburg’s death, said, “I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices.” That didn’t happen, though cases were brought to the court.
Both before and after the election, lawsuits came to the court challenging the decision of the Pennsylvania Supreme Court to extend the time for absentee ballots to be received from Nov. 3 to Nov. 6. Republican challengers argued that under the Constitution, it is for the legislature to set the rules for presidential elections and that a state court cannot do this even in interpreting the state constitution.
The court did not take the cases, perhaps because this affected fewer than 10,000 votes in a state Biden carried by 70,000 even without those ballots being tallied.
Even more significant, on Dec. 12, the Supreme Court denied review in Texas v. Pennsylvania, an effort by Texas—supported by amicus briefs by 18 Republican attorneys general and over 100 Republican members of Congress—to prevent the electoral votes being counted from Pennsylvania, Georgia, Michigan and Wisconsin.
The court simply said: “Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.” The lawsuit was an effort by President Trump and Republicans to have the Supreme Court decide the election in their favor. It would have been unprecedented for the court to say that the votes in four states were not to be counted in determining their representation in the Electoral College. The court wanted no part of it.
The court cancels two months of oral arguments, holds oral arguments by telephone, changes how arguments are conducted, and allows live broadcasts of arguments
Every aspect of life was changed in 2020 by the COVID-19 pandemic, and the Supreme Court was no different. It canceled oral arguments in March and April. (The last time the court canceled a month of oral arguments was in October 1918 because of the Spanish flu.)
The court rescheduled 10 of those cases for oral arguments in May. The arguments were conducted by telephone for the first time in history and were structured in a new way. Each justice, in order of seniority, had an allotted amount of time to ask questions.
There were live broadcasts of the oral arguments, also for the first time in history. All of this continued for the oral arguments held in October, November and December 2020. It will be interesting to see which of these reforms continue when the court returns to its majestic courtroom for oral arguments after the pandemic.
The October 2019 term was filled with blockbuster decisions but defies easy ideological description
Both liberals and conservatives had major victories in the October 2019 term. Liberals cheered at the court’s decision in Bostock v. Clayton County, Georgia, which held 6-3 that Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex. Also, in June Medical Services v. Russo, the court, 5-4, struck down a Louisiana law that required that a doctor performing an abortion have admitting privileges at a hospital within 30 miles.
In Department of Homeland Security v. Regents of the University of California, the court, again 5-4, ruled that President Trump violated the federal Administrative Procedures Act in rescinding the Deferred Action for Childhood Arrivals program, which granted deferred deportation status to as many as 800,000 “Dreamers.”
In two cases decided by 7-2 margins, the court ruled against President Trump’s claim of absolute immunity from having his financial records subpoenaed. In Trump v. Vance, the court held that a state grand jury may subpoena President Trump’s accountants to provide his financial records. Roberts, writing for the majority, stressed that the law has the right to every person’s evidence and the president has no more protection from grand jury subpoenas than any other person.
In Trump v. Mazars USA, the court said enforcement of congressional subpoenas requires sensitivity to separation of powers issues and a court must consider the importance of the information to Congress, the availability of the information from other sources, the breadth of the subpoena and the burden on the president. Interestingly, the court provided more protection for a president’s financial records from congressional subpoenas than from those issued by state grand juries.
But it would be a mistake to see the October 2019 term as having a liberal bent. There also were many notable conservative victories. Perhaps most important, the court made clear that it is dramatically changing the law of the religion clauses to provide much more protection for religious entities. In Espinoza v. Montana Department of Revenue, the court held that when the government provides aid to secular private schools it is required by the free exercise clause of the First Amendment to give that same aid to religious schools unless doing so would violate the prohibition of the establishment clause.
In Our Lady of Guadalupe School v. Morrissey-Berru, the court held that a religious school could not be sued for employment discrimination by its lay teachers so long as they played some role in teaching and modeling religious behavior.
Indeed, 2020 was a year like no other in so many ways, including at the Supreme Court. My best wishes to all for a happy, healthy new year.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020)