As the only non-elected branch of our federal government, the Supreme Court usually gets a cursory glance during elections. The American political arena is dominated by the cult of personality. It makes perfect sense that politicians barely mention those stoic judges in black robes. Politicians are too busy screaming about tax cuts, gun control, abortion and immigration. Although the Supreme Court is less mentioned and less noticed by our politicians, the media and the general public, it is still a coequal branch of our government. The Supreme Court has always played a role in electoral politics. Conservatives have always worried more about the Supreme Court than liberals. Some scholars attribute this conservative concern to the “liberal” rulings of the Court in the 50s, 60s, 70s and early 80s. In 2016, the conservative majority on the Court was threatened after the death of Justice Scalia. Majority Leader McConnell refused to hear President Obama’s nominee, Judge Merrick Garland. The majority leader felt the American people should decide the fate of the Court at the ballot box, which further politicized the Court. During the 2018 midterm campaign, President Trump nominated and the Republican-led Senate confirmed Justice Kavanaugh, a confirmation that helped the “pink-wave” of female Democrats elected all over the country. As the 2020 election heats up, the Supreme Court will inevitably be drawn into the fray. Here are the top ten ways the Supreme Court will come up in the 2020 election.
Gorsuch, Roberts, Kavanaugh and RBG
Last week, after Bostock v. Clayton County, GA, Zarda v. Altitude Express and RG & GR Harris Funeral Homes Inc v. EEOC, conservative commentator Ben Shapiro, in frustration over the ruling, called Chief Justice Roberts “the worst Supreme Court Justice of all time.” Shapiro went on to lambaste Justice Gorsuch as well. Republicans are not happy with what they perceive to be “liberal” rulings by the Court this term. On the other hand, Democrats will continue to make Kavanaugh a campaign point. Since Mr. Biden has chosen a woman as his running mate, his VP pick and female Democratic congressional candidates will likely continue to criticize that the Republicans confirmed a man accused of a heinous sex crime. Ruth Bader Ginsburg, a liberal icon, is 87 years old and has health problems. If President Trump gets a second term, she may die, and Trump will get to pick her successor. Democrats will do whatever they can to stop that scenario from happening.
More Conservative Justices and Court Packing
After recent defeats at the Supreme Court, President Trump tweeted that we need “more Justices.” Some people interpret this to mean “more conservative Justices,” while mostly liberal commentators said Trump was threatening to pack the Supreme Court. They claimed Trump’s tweet was a threat to democracy. I find Democrats accusing President Trump of wanting to pack the Court ludicrous because some of the Democratic 2020 presidential candidates were openly saying the Court should be expanded with new justices. Pete Buttigieg put forth a plan to add additional justices to the Court, and Elizabeth Warren, Cory Booker, Kamala Harris and Andrew Yang indicated that they were open to the idea of packing the Court. I can talk all day about FDR’s Court packing plan, the “switch in time that saved nine,” why expanding the Court endangers the independence of the judiciary and why we need a constitutional amendment establishing nine, and only nine, justices. But that’s a story for another day. Fortunately, former Vice President Biden said he’s against packing the Court.
After Shelby County v. Holder in 2013, the Voting Rights Act’s power was drastically limited. Now Voter ID laws, purging voter rolls and voting by mail are politically charged issues. With the coronavirus raging across the states, worries about the 2020 election have crossed the minds of elected officials. Some states have already held primaries under threat of the coronavirus. These states are test runs for how to safely run the general election in November. Many states are turning to mail-in ballots as a safe solution. Wisconsin had a lot of legal drama in April revolving around the last-minute implementation of their vote-by-mail program and hundreds of voting precincts being closed. The Court weighed in the night before the election on an application for stay of a lower Court order. The Roberts Court has been especially concerned with staying out of issues of gerrymandering and voting. Chief Justice Roberts views those issues as inherently political and therefore out of the purview of the Court. Voting rights are becoming a new battlefront for culture wars. Expect Democrats to criticize the Court on these issues.
Religious Liberty and LGBT Rights
After the recent Court ruling that employers cannot discriminate against members of the LGBT community, conservatives have been fearing for the future of religious liberty. Justice Gorsuch addressed this concern in the last few paragraphs of that majority opinion. He said that the Court couldn’t really address religious liberty claims in those cases since the employers based their defense on the “sex” portion of the Civil Rights Act of 1964. It would have been a different matter if the employer’s defense was based on the Free Exercise Clause. More conservatives and more liberals are viewing religious liberty and LGBT rights at odds with each other. Expect this issue and the Court’s jurisprudence in these areas to be a big point of contention in the 2020 presidential and congressional races.
Immigration and DACA
Earlier this week, the Court ruled that the Trump Administration violated the Administrative Procedure Act in the way it ended the DACA program. After the ruling, President Trump aired his grievances on Twitter. He vowed to end the program again but in accordance with the Court’s decision. Immigration is one of the main differences between the two parties right now, and selecting justices who will protect immigrants will be a top priority for the Democrats. DACA is at risk to be legally ended unless the Democrats take the White House or Congress enshrines legal status for the Dreamers through federal legislation. Democrats taking the White House is more likely than immigration reform passing Congress.
The Court has yet to rule in June Medical Services LLC v. Russo. That decision will be coming in the next few weeks. This case is almost a carbon copy of Whole Woman’s Health v. Hellerstedt (2016). The factual circumstances regarding the case are eerily similar. The only real difference is the composition of the Court. Logic tells us that the Court will uphold the Hellerstedt precedent and rule in favor of the abortion providers. President Trump and Republicans would ideally like the Court to overturn Roe v. Wade, but this case is unlikely to be the vehicle for the conservative bloc to overturn the 1973 decision. If the Court decides to reject the Hellerstedt precedent, they will use this case to start slowly chipping away at Roe and Casey. If the Court rules in favor of the abortion providers again, conservatives will use this ruling as a way to characterize the Court as liberal. President Trump will vow to nominate justices who will overturn Roe. On the other hand, if the Court starts chipping away at Roe, Democrats will use this to prove that they need to take back the White House and Senate to restrict the power of a “conservative” Court.
Next term, the Court will hear yet another challenge to the Affordable Care Act. Since the Trump Administration is urging the Court to rule the ACA unconstitutional, Democrats are saying the “heartless Republicans” are trying to take people’s healthcare away during a pandemic. The Democrats are going to use this as another reason to take back the White House and nominate justices willing to uphold the previous Obamacare precedents. Earlier, the Court ruled that the individual mandate was constitutional because Congress enacted it as a tax rather than through the power of the Commerce Clause. President Trump and the conservatives, who are suing, argue that since the individual mandate tax no longer exists, the entire Affordable Care Act is unconstitutional. This will probably be a 6-3 or 7-2 decision upholding the ACA next term, but this will be a major campaign issue for the Democrats.
In the late 1960s, the Supreme Court introduced the concept of qualified immunity for law enforcement officers. Qualified immunity intends to protect officers from frivolous lawsuits and financial liability in instances where the officer acted in good faith. In the many years since the late 1960s, qualified immunity has been used to shield law enforcement officers from being held accountable for their actions, especially in cases of police brutality. In recent years, the Court has been unwilling to revisit the issue. The Court ideally wants Congress to take up the issue. Since the brutal murder of George Floyd, the country has been engaged in a conversation about police brutality, racism and the proper role of law enforcement in a free society. Expect Democrats to bring up the Court’s role in establishing qualified immunity and their recent unwillingness to revisit the issue.
Gun Control and Gun Rights
The Court ruled that the case was moot in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Revolving around restrictions on transporting firearms, this was one of the first big gun cases to reach the Court since Heller and McDonald. The Court could have ruled on the side of gun rights and placed legal barriers to future gun control legislation, but the Court decided to rule on the factual circumstances of the case. All the recent mass shootings and the lack of effective legislation in wake of those tragedies have enraged Democrats on the campaign trail. Gun control will be a litmus test for any Democratic president’s nominee to the Court. Any nominee favorable to gun control will be a reason for Republicans to block said nominee.
If Elizabeth Warren or Bernie Sanders were the Democratic nominee, campaign finance would likely be a bigger issue. Campaign finance has fallen to the wayside in light of the coronavirus and police brutality. Although campaign finance is not being talked about as much as it was a few months ago, many Democrats still feel passionately about this issue. Citizens United is not disliked by only Democrats. The majority of Republicans, independents and the public at large dislike this ruling. The precedent established by Citizens United has led to the perception of “dark money” in politics. Although the American people dislike this decision, only Democrats push this issue. Moderate Republicans, such as Senator John McCain who cared about this issue, have either left or been forced out of the Republican Party.
Patrick Johnson is the President of Hope College’s Pre-Law Society
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