Chemerinsky: 2019 was all about setting up the blockbuster year 2020 promises to be
Erwin Chemerinsky. Photo by Jim Block.
The past year was unusual in the U.S. Supreme Court because the justices handed down only a few blockbuster decisions but then filled their docket with a stunning number of cases of potentially great significance to be decided in spring 2020. Interestingly, the court could have taken many of these cases in the October 2018 term for decisions in June 2019, but it did not do so.
On Jan. 11, 2019, the justices met in their private conference to take the remaining cases to be heard in the October 2018 term. There were eight slots open on the April oral argument calendar and the court had an amazing array of cases to choose from.
These included the 9th Circuit’s decision upholding a preliminary injunction against President Donald Trump’s rescission of DACA (Deferred Action for Childhood Arrivals), a 2nd Circuit decision upholding a New York law that greatly restricted having guns outside the home, conflicting decisions of the 2nd and 11th Circuits over whether sexual orientation discrimination in employment violates Title VII, and much more.
The court took none of these cases to hear during the October 2018 term. I do not think it was a coincidence. After the bruising confirmation fights of Brett M. Kavanaugh in fall 2018, I think the justices intentionally tried to have the court keep a lower profile. But this won’t last for long: The court took these cases for the October 2019 term, along with cases involving such controversial issues as abortion rights, separation of church and state and the scope of presidential immunity from subpoenas.
Interestingly, then, 2019 is most notable for the Supreme Court putting off cases to be decided in 2020. Of course, this means that they likely will come down in June 2020, in the midst of a presidential election season.
Another way in which 2019 was notable was the absence of a vacancy on the Supreme Court. In each of the prior two years, a new justice joined the court: Neil M. Gorsuch in 2017 and Kavanaugh in 2018.
There was much attention to Justice Ruth Bader Ginsburg’s health, with her having part of a lung removed in December 2018, and missing oral arguments in January. In the summer, she was diagnosed with pancreatic cancer and went through radiation treatment. She turned 86 on March 15, 2019, but one need only listen to oral arguments to hear that her voice is as vibrant and her mind as sharp as ever.
So, what were the most important cases, and what did we learn about the court in 2019?
In Rucho v. Common Cause, the court held 5-4 that challenges to partisan gerrymandering are “political questions” that cannot be adjudicated by the federal courts. Partisan gerrymandering is where the political party that controls the legislature draws election districts to maximize safe seats for that party. Although the practice has existed throughout American history, sophisticated computer programs have made it far more precise and effective than ever before.
Chief Justice John G. Roberts Jr., joined by the four other conservative justices, concluded that there are no judicial standards for determining when politics has played too great a role in districting and thus the federal courts should stay out of the matter. Justice Elena Kagan, joined by the three other liberal justices, wrote a blistering dissent, and argued that partisan gerrymandering is at odds with democracy and violates the Constitution. She said that courts can, and have developed, standards for when partisan gerrymandering goes too far.
The result of Rucho v. Common Cause is that state legislatures, when they engage in redistricting after the 2020 census, know that they can engage in gerrymandering without concern about a federal court challenge. But there still might be suits in state courts under state constitutions.
In Department of Commerce v. New York, the court held 5-4 that the Trump administration had not offered a legitimate reason for asking a question about citizenship on the 2020 census forms. Through much of American history, census forms included a question about citizenship. But the question was removed, initially from the short form that went to everyone, and then from all census forms, because of concern that it would cause noncitizens to refrain from participating. An enormous amount depends on an accurate enumeration of the population, including allocation of seats in the House of Representatives and allotment of federal money.
Secretary of Commerce Wilbur Ross decided that the 2020 census forms, which go to everyone, will include a question about citizenship. The state of New York and several public interest groups challenged this on several grounds and prevailed in the lower courts.
The Supreme Court, in a 5-4 decision, with Chief Justice Roberts writing for the court and being joined by the liberal justices, said that the Trump administration failed to articulate any reasonable justification for this action. He noted that there was no evidence to support the claim that this would help enforce the Voting Rights Act, and that assertion was little more than the attorney general doing a favor for the secretary of commerce.
Chief Justice Roberts said that the case should be remanded to allow the Commerce Department to offer a legitimate reason for asking the citizenship question. But ultimately the Trump administration decided that there was not sufficient time for this before census forms needed to be printed and there will not be a citizenship question on the 2020 census.
Separation of church and state
In American Legion v. American Humanist Association, the court ruled 7-2 that the establishment clause was not violated by a 40-foot cross on public property at a busy intersection in Prince George’s County, Maryland. There were seven different opinions in the case.
But the conclusion was clear: There is a majority on the court to allow much more religious presence in government, such as religious symbols on government property and government support for religion. The case portends a major shift on the court with regard to the establishment clause, with a majority of the justices rejecting the idea of a wall separating church and state, and embracing the need to accommodate government and religion.
The court overruled long-standing precedents in two cases. In Franchise Tax Board of California v. Hyatt, the court overruled Nevada v. Hall (1979) and held that state governments cannot be sued in other states’ courts. In Knick v. Township of Scott, Pennsylvania, the court overruled Williamson County v. Hamilton Bank (1985) and held that there is no need to exhaust administrative or state judicial remedies before bringing a takings claim to court.
Both cases were 5-4, with the conservative justices in the majority. Both cases suggest a conservative majority that gives relatively little weight to precedent. Justice Stephen G. Breyer concluded his dissent in Hyatt by lamenting, “Today’s decision can only cause one to wonder which cases the court will overrule next.”
When the court deals with topics such as abortion, affirmative action and gay and lesbian rights, the outcome well could turn on what weight the five conservative justices give to precedent. Decisions in 2019 suggest not much.
We saw that it is clearly the Roberts Court, with Chief Justice Roberts writing 36% of the majority opinions in 5-4 or 5-3 decisions, including in some of the most important cases of the term.
Justice Clarence Thomas urged the overruling of long-standing precedents in a stunning number of cases. In Garza v. Idaho, he argued that Gideon v. Wainwright (1963), which held that a state must provide an attorney for an indigent criminal defendant who is facing a possible prison sentence, was wrongly decided.
In McKee v. Cosby, he said that New York Times v. Sullivan (1964), which limited defamation recovery by public officials, should be overruled. In American Legion v. American Humanist Association, he argued that Everson v. Board of Education (1947) was incorrect and the Establishment Clause should not be applied to state and local governments.
In Timbs v. Indiana, Justice Thomas argued that there is no such thing as substantive due process and especially said that the cases protecting abortion rights were wrongly decided. In Flowers v. Mississppi, Justice Thomas urged the overruling of Batson v. Kentucky (1986), which held that prosecutors cannot exercise peremptory challenges based on race. I cannot think of a term where one justice urged the overruling of so many canonical precedents.
And, finally, we heard Justice Kagan’s strong voice, especially in her powerful dissents in Rucho v. Common Cause and Knick v. Township of Scott, Pennsylvania. Once more, we saw that she is one of the best writers on the court, with clear and powerful prose.
There is no such thing as an unimportant year in the Supreme Court. Yet, there is the real sense that 2019 was all about setting up the blockbuster year that 2020 promises to be.
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, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.