A New U.S. Supreme Court?

The late Justice Byron White famously said that with each new justice, there is a new Supreme Court. Americans soon will be able to judge the truth of that statement.

President Donald Trump shortly will announce his choice to fill the seat of the late Justice Ruth Bader Ginsburg who died September 18. Senate Republicans apparently have enough votes to confirm his nominee and the new justice is likely to be on the bench before election day.

Most justices would agree with White's statement about the effect of a new justice. They just have different ways of expressing it. One justice told me in an interview some time ago:

“It's going to be different. You develop not only a relationship with the court but individual relationships as well. Like anything else, you suddenly get a new member of the family and you try to get to know them, to establish a relationship with them, how they like to deal with colleagues, be it a close personal relationship or to maintain a more distant one. It adds a new element. It reshuffles the deck.”

The late Justice Antonin Scalia had a more pragmatic view. He told me once:

“Old alliances, people you could rely on for certain positions in prior cases aren't there anymore. That's always the principal effect of a new justice.”

In 2005 when President George W. Bush nominated John Roberts Jr., the Supreme Court had gone 11 years without a change in personnel—the longest time without a change in justices in modern history. But consider this: from 2005 until 2020 and a new nominee, seven new justices will have joined the nine-member court—a huge turnover.

There also is an effect on the newest justice. Justice Elena Kagan has said that when she attended her first private conference in which the justices decide argued cases and choose new cases, it felt like she was stepping into the middle of discussions that had been going on for decades. And they had been ongoing for decades because law develops over time and each Supreme Court adds to our body of law.

So what should we be looking for from the newest new Supreme Court in the coming months? First, the cases.

The term officially opens on October 5. The two highest-profile cases thus far will be argued in early November.

Affordable Care Act:

In California v. Texas, combined with Texas v. California, the Trump Administration and a coalition of Republican-led states urge the justices to strike down the entire health insurance law enacted in 2010 and whose constitutionality was upheld by the Supreme Court in 2012.

The administration and state challengers to the act contend that when Congress in 2017 eliminated the tax penalty for failure to purchase health insurance, it also eliminated the basis for the constitutionality of the insurance mandate—that it was constitutional under the taxing power of Congress. Millions of Americans would lose health insurance if the justices accept this argument and millions more would be affected by other provisions in the complex law. The argument is scheduled for Nov. 10.

Religion and LGBT Discrimination

In Fulton v. City of Philadelphia, which will be argued Nov. 4, several foster parents and Catholic Social Services challenge Philadelphia's policy of stopping referrals of foster children to the social services agency for placement because the agency would not certify same-sex couples as foster parents. The agency argues the policy violates the First Amendment free exercise clause because it conditions a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

Election Disputes

Nothing is on the court's docket yet, but expect to see emergency appeals to the justices involving election-related rules and changes, many related to the ongoing pandemic. For example, Pennsylvania Republicans have said they will appeal to the Supreme Court to decide the legality of allowing voters to return mailed ballots up to three days after the election.

There is much litigation in the lower courts involving state election requirements and changes concerning the number or location of ballot drop boxes, deadlines for absentee ballots, and signature requirements, among others. It is not unusual in an election year to see a flurry of emergency appeals, but the COVID-19 crisis has put a new face on these cases.

One other potential, related issue is already at the court. The justices have not yet decided whether to grant the Trump Administration expedited review of a three-judge court's decision holding illegal President Donald Trump's memorandum concerning undocumented aliens counted in the 2020 census. The memorandum directs the U.S. Commerce secretary to give the president the number of aliens in the total population count so he can eliminate them from the report he sends to Congress for apportionment of seats for the U.S. House of Representatives.

Second, besides the court's cases, the dynamic among the justices also will be interesting to watch, more so with the addition of another conservative justice boosting the conservative majority to six.

Since the retirement of Justice Anthony Kennedy, Chief Justice John Roberts Jr. has been the “median” justice. A conservative and an institutionalist, Roberts generally is not as staunchly conservative as justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Last term, he formed 5-4 coalitions with the four justices to his left to strike down a Louisiana abortion law and to block the Trump Administration's plan to end a policy that temporarily delays the deportation of children brought to this country by their undocumented parents.

With a sixth conservative justice and three liberal justices, Roberts likely will see his influence diminish and his ability to control how far and how quickly the court may move the law to the right. And also interesting to watch will be who will emerge among the three liberal justices to replace the voice of Justice Ginsburg?

Lots to watch. Stay tuned.