Looking Ahead to 2021

Chemerinsky: Predicting the Supreme Court in 2021 may be dangerous and futile

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Erwin Chemerinsky. Photo by Jim Block.

At the end of 2019, I attempted to look ahead to what to expect in the U.S. Supreme Court in 2020. Of course, the most important stories—the COVID-19 pandemic and how it changed the court, the death of Justice Ruth Bader Ginsburg, the confirmation of Justice Amy Coney Barrett—could not possibly have been foreseen.

I am sure 2021 will be no different in its unpredictability, but here are some things to look for at the Supreme Court in the year ahead.

How will the court handle the many pending cases involving challenges to Trump administration policies?

There are a number of important cases on the docket that involve lawsuits challenging Trump administration policies. For example, Trump v. Sierra Club asks whether President Donald Trump violated federal law in transferring money to build the Mexico border wall after Congress refused to appropriate funds for it. In Wolf v. Innovation Law Lab, the court is scheduled to hear a challenge to the Trump administration’s “remain in Mexico” policy, which requires that those traveling through Mexico to seek asylum in the United States first seek asylum in Mexico. As president, Joe Biden is sure to rescind these policies after he officially takes over. Will the court then declare the cases moot?

Already one case has been taken off the docket because of Biden’s victory. Department of Justice v. House Committee on the Judiciary involves a congressional subpoena for materials from former special counsel Robert Mueller’s investigations. But the House Judiciary Committee asked the court to wait because once a new Congress and Biden take office in January, it “will have to determine whether it wishes to continue” its efforts to obtain the materials.

Also, it is expected that the solicitor general’s office in the Biden administration will reverse positions taken by the Trump Justice Department in a number of cases now pending in the Supreme Court. This is exactly what happened after the inauguration of Trump in January 2017.

What will be the impact of the court’s staunch conservative majority?

On the ideological spectrum from right to left, there are now five very conservative justices—Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett; one moderate conservative—Chief Justice John G. Roberts Jr.; and three justices left of center—Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan. This is the most conservative court since the mid-1930s.

In addition to the cases involving Trump, other cases might provide an initial glimpse of the importance of this. In California v. Texas, the Supreme Court again will consider the constitutionality of the Patient Protection and Affordable Care Act. In Fulton v. City of Philadelphia, the court is hearing a challenge by Catholic Social Services that its First Amendment rights are violated by a city’s requirement that those contracting to do foster care inspections and placements not discriminate on the basis of sexual orientation.

There now clearly appears to be a majority on the court to impose greater limits on the administrative state, including by striking down restrictions on presidential removal of agency officials, reviving the nondelegation doctrine, and reconsidering deference to administrative agencies. These issues will be coming to the court in the context of a Democratic administration and its actions being reviewed by a bench that includes six justices appointed by Republican presidents.

When will the court return to in-person arguments and how will they be conducted?

Beginning in May 2020 and continuing through the fall, the court has held its oral arguments by telephone. It has used a procedure never done before in which each justice, in order of seniority, asks questions for an allotted number of minutes. There is a greater orderliness to the procedure than the usual format where justices ask at will. Also, each justice gets an equal amount of time to ask questions and all, including rare questioners such as Thomas, participate. But there also is a downside: There is often is less depth to the questioning.

Instead of justices following up on the questions of others, which obviously still can happen, the next justice frequently asks unrelated questions. Sometime later in the argument, another justice might return to the earlier topic.

The other major change is that the court is allowing live audio broadcasting of its arguments. Long after many state appellate courts and federal courts of appeals began livestreaming of all arguments, the Supreme Court adamantly refused to permit cameras in its courtroom. The live audio broadcasting has posed no problems, and hopefully, it will continue even when the justices return to the majestic courtroom.

What’s ahead with COVID-19 and the Constitution?

There have been hundreds of lower court cases involving legal issues arising from COVID-19, including many challenges to government restrictions imposed to limit the transmission of the disease and many suits by prisoners and those in immigration detention seeking release from custody. The Supreme Court has handed down several orders, most notably in cases involving churches challenging restrictions on attendance at religious worship services. But certiorari has not been granted in any cases yet, though that seems likely as these cases make their way to the high court.

Nationally, there has been a profound ideological difference in the reaction to COVID-19 and to restrictions imposed to limit its spread. Conservatives, led by Trump, have minimized its severity and objected to the restrictions imposed. Liberals, by contrast, have taken a very different approach and Democratic governors have imposed many restrictions that are being challenged in the courts.

This division is evident on the Supreme Court as well. In Roman Catholic Diocese of Brooklyn v. Cuomo, the five most conservative justices ruled in favor of challenges by churches and synagogues to New York Gov. Andrew Cuomo’s restrictions on religious worship services. Gorsuch wrote a separate opinion sharply questioning the government’s power to restrict liberty to stop the spread of COVID-19.

Thirteen days earlier, Alito gave a speech to the Federalist Society expressing these same points. But the liberal justices, joined by Roberts, took a different approach. Breyer’s dissent stressed the toll of the pandemic and the need for aggressive action to stop its spread. In an earlier case, Roberts expressed the need for deference to government officials who are acting to stop the transmission of a deadly disease.

As more challenges by religious institutions come to the court in addition to objections to orders closing businesses, restricting travel and limiting assemblies for speech purposes, the different perspectives of the justices are likely to be evident.

Will Breyer consider retiring?

Breyer, at age 82, is the oldest justice on the court. In 2014, some urged Ginsburg to retire while there was a Democratic president and a Democratic majority in the Senate. But she chose not to do so, and Trump replaced her with someone who could not be more ideologically different.

Will this cause Breyer to consider retiring during the Biden presidency? The timing of this well could be influenced by the outcome of the two Senate races in Georgia and which political party controls the Senate. The next oldest justices are Thomas, who is 72, and Alito, who is 70, and it is impossible to imagine them choosing to leave the bench and allowing Biden to pick their successors.

In conclusion

As 2020 demonstrated, it is dangerous to make predictions. But hopefully, 2021 will see widespread availability of the COVID-19 vaccines, an end to the pandemic and a return to normal for the Supreme Court and the country.

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).

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