As President Donald Trump moves forward with his nomination of Judge Amy Coney Barrett to the Supreme Court, the other justices are about to get back to work.
The court is scheduled to hold its end-of-summer conference on Tuesday, where they will consider new cases to hear in the coming year.
The following Monday, Oct. 5, the court will start hearing arguments, the first without the late Justice Ruth Bader Ginsburg as a member of the court in nearly three decades.
Already, a number of high-profile cases are on the docket, with potential impacts that stretch deep into American life. The justices may also be called to address emergency litigation over the Nov. 3 presidential contest, as they did in 2000. Trump has said that such a possibility is driving him to get a justice confirmed by Election Day.
In one of the most significant disputes of the term so far, the justices will again consider the legality of the Affordable Care Act, former President Barack Obama’s signature health-care legislation. Arguments over the law will take place Nov. 10.
In its third go-round at the top court, the law, known as Obamacare, is being challenged by a slate of Republican-led states backed by the Trump administration, who argue that the law’s individual mandate is unlawful.
The top court upheld the individual mandate in 2012 under Congress’s power to tax. But in 2017, Congress set the individual mandate penalty to $0.
The red states argue that, on that basis, the individual mandate is no longer a tax, and is therefore illegal. They have said that as a result, the whole law must fall.
A ruling striking down the health-care legislation would be catastrophic for millions of Americans.
More than 11 million people who enrolled or re-enrolled in an Obamacare exchange plan last year would be expected to lose their coverage, and the law’s protections for those with preexisting conditions and young Americans on their parents’ plans would also disappear.
The coverage for more than 12 million low-income Americans who have relied on the law’s expansion of the Medicaid program would also be in jeopardy.
Trump has repeatedly pledged to produce a health-care plan that would replace the Affordable Care Act, but has not yet done so, despite frequently claiming that such an agenda would be unveiled within weeks.
It is not clear how the Supreme Court will rule on the matter, but both of the lower federal appeals courts that examined the question found the individual mandate provision to be unconstitutional. If the court decides the matter with just eight justices, a possible 4-4 tie would leave the lower court rulings standing.
Another major case concerns the Constitution’s religious liberty protections, and the government’s ability to limit discrimination against LGBT people.
In Fulton v. City of Philadelphia, the court will consider a challenge brought by a Catholic foster care agency against a Philadelphia policy that says the agency must not reject prospective same-sex foster parents on the basis of their sexual orientation. Arguments in the case are set for Nov. 4.
The city has argued that it has a legitimate interest in protecting LGBT couples from discrimination, but the agency, Catholic Social Services, alleges that the policy amounts to discrimination and hostility against its religious beliefs because it “refuses to embrace the City’s beliefs about marriage.” A federal appeals court sided with the city.
The case is significant because the agency is asking the court to strike down a longstanding precedent that has applied to laws affecting religious liberty for three decades. The court decided in Employment Division v. Smith in 1990 that generally applicable laws that do not specifically target religion do not violate the Constitution.
After the top court ruled in the Employment Division case, Congress passed the Religious Freedom Restoration Act, which heightened scrutiny on laws affecting religious liberty.
According to Katherine Franke, a law professor at Columbia University, in the years since the passage of that law the Supreme Court has interpreted it in a way that has “expanded religious liberty rights well beyond where they were in 1990.”
Franke said it was quite possible the court would revisit Employment Division v. Smith and “read those RFRA rights back into the Constitution.”
Even before Ginsburg’s death, the Roberts court was particularly deferential to religion, but it is likely to grow even more so.
Just last term, the court ruled that Trump could allow employers with sincerely held religious beliefs to bar their workers from receiving free contraceptive coverage under Obamacare, shielded religious schools from discrimination suits brought by teachers, and struck down a decision from a Montana court that had eliminated a scholarship program indirectly funding religious schools with taxpayer money.
A third potentially consequential case resuscitates issues that may feel to be from a different political era. On Dec. 2, the court will hear arguments in a case between the Department of Justice and the Democratic-led House Judiciary Committee that concerns a potential new impeachment of the president and former special counsel Robert Mueller.
The Justice Department in that case is asking the justices to overturn a lower court ruling that would force the Trump administration to turn over secret Mueller grand jury documents that were compiled during the former FBI director’s investigation of the president’s 2016 campaign.
Grand jury materials are normally closely guarded, but an exception exists when they are sought as part of a “judicial proceeding.”
The Democrats on the Judiciary Committee have said they need the documents in order to determine whether the president should be impeached again — he was acquitted on separate impeachment charges in February — and argue that an impeachment qualifies as a judicial proceeding.
The federal appeals court in Washington sided with the Democratic committee, but the justices put that ruling on hold while they consider the matter. If Biden wins the election, it’s possible the case will be dismissed. The case may also be dismissed if it remains undecided when a new House of Representatives sits in January.
