Constitution Daily

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The biggest tests the new Justice would face

July 9, 2018 by Lyle Denniston


If Judge Brett M. Kavanaugh takes a seat on the Supreme Court sometime in coming months, with Senate approval accomplished, the challenge of casting a solid fifth conservative vote will be tested across a wide array of deeply divisive questions – ranging from abortion to gay rights to healthcare to immigration to President Trump’s personal legal fate.

It will not take long before the President’s ambition – to choose a Justice who would vote to roll back constitutional protection for women’s abortion rights – could be fulfilled or frustrated.  Cases already working their way toward the Court focus on state laws that would ban abortions as soon as a fetal heartbeat is detected (at about six weeks), impose longer waiting periods for the procedure, and make unavailable a medicine-induced abortion as an alternative to a surgical termination.

The Trump Administration could decide to step into any one of those cases, to ask the Court not just to uphold such restrictions but also to use any one of them as a test case on whether to remove constitutional protection for any intentional termination of pregnancy.  

Undoing the precedents that began with Roe v. Wade would not ban abortions all across the nation.  But doing so would clear the way for state legislatures that wish to do so to forbid any such procedures within their borders.   Abortion-rights advocates have estimated that as many as 23 states would attempt to do so.  Some of those may be prepared only to impose new limitations, but those, too, would be free of a constitutional check.

To accomplish a rollback of abortion rights would definitely take five votes from conservative members of the Court because there are four liberal Justices who remain fervent defenders of those rights.  Those four were able to continue protection because they have been able, at least some of the time, to draw a fifth vote from Justice Anthony M. Kennedy, but he is retiring at the end of this month.

On abortion questions, the public would then focus on the new Justice, along with Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, and Clarence Thomas.

It has been widely assumed in political circles in Washington that the Court could be faced, perhaps soon, with some fundamental constitutional questions should the special prosecutor investigating Russian interference in U.S. elections seek to summon President Trump to testify before a criminal grand jury or charge him with any crime.

The questions include whether the President has immunity to being subpoenaed or to being charged while in office and the issue of whether he could pardon himself in that situation.

Supreme Court nominee Kavanaugh has written on those issues in the past, though not as a judge, and has strongly favored a broad immunity for the nation’s Chief Executive.  While those views surely will be explored during coming hearings by the Senate Judiciary Committee, the fact that the judge wrote them would not necessarily mean he could not take part in rulings on such questions as a member of the Court.  For Justices, such a recusal is a matter of personal choice. 

If the anticipated Robert Mueller report does raise an issue of impeachment, that would not create a question for the Justices to decide.  The Court constitutionally has no role in that process, although Chief Justice Roberts would preside if there were to be a trial in the Senate on removal charges.

President Trump’s business interests also could be at issue before the Court if, as expected, lower courts rule on claims that he has benefitted financially from that activity while in office.  The claim is that such benefits violate constitutional bans on presidential gifts or “emoluments.”  Those cases are in trial courts now but are likely to be moving up on appeals.

Also very likely to reach the Court’s docket are attempts by foes of Obamacare – the Affordable Care Act – to strike down that law’s promises that insurance companies cannot turn away people with pre-existing medical conditions and cannot raise rates just because of existing medical problems.

An attempt by a group of states to do just that is now unfolding in a federal court in Fort Worth, Texas, and could be decided before the summer is over.  If the judge rules as the challengers want, the case could be put on a fast track to the Supreme Court.  The five Justices who turned aside a major challenge to Obamacare earlier are still on the Court, but there is no way to be sure they would do so this time, too.  One of them is Chief Justice Roberts, who had constitutional problems with parts of Obamacare beyond those that he helped upheld.

Lawsuits unfolding in lower courts and ultimately likely to reach the Court challenge the Trump Administration’s policy of allowing many more religious and moral exemptions from the Obamacare mandate that employers provide free birth-control methods to their female employees.

Two issues which the Justices could not agree to decide in a definite way in the just-past term will be returning to the Court before long. One is whether states can enforce against retail stores and other businesses their laws that seek to protect gays and lesbians from discrimination when they are refused service based on the merchant’s religious objections. The other is whether it is unconstitutional for a political party that dominates a state legislature to draw up new election districts with the specific aim of giving their party’s candidates a special advantage at the polls.   “Partisan gerrymandering” cases from Maryland, North Carolina, and Wisconsin could be returning for a new round of review, or new cases could arise.

It is a certainty that the Court will be facing new cases on gay rights, including whether federal civil rights laws against sex discrimination do protect gays and lesbians.  There are also likely to be new disputes in a new field not yet addressed by the Court, on whether transgender people are protected under sex discrimination laws.

Controversial questions that have been boiling up over immigration are all on track to reach the Supreme Court in coming months.  Those include the Trump Administration’s border-control policies that have led to the separation of undocumented parents who seek asylum and their children; the Administration’s attempt to shut down the DACA program (“Deferred Action for Childhood Arrivals”) that has helped some 800,000 younger undocumented immigrants to remain in the country to work and go to school and college; and the Administration’s attempt to cut off federal law-enforcement grants to cities and states (so-called “sanctuaries”) that refuse to help enforce federal immigration laws.

The Trump Administration is already seeking to make use of its recent victory in the Supreme Court, upholding the ban on entry to the U.S. of travelers from six Muslim-majority nations, to support its argument to end the DACA program.   It will also likely do the same as other immigration policy questions arise in the courts.

Among other fields of constitutional law that may test a new conservative majority are the techniques used to carry out the death penalty, a series of prior Court decisions that give juveniles who commit crimes special treatment, and the scope of the federal governments’ power to prosecute terrorists in special military “war courts.”

Although the Court has for years allowed some use of race in college admissions and government contracting, support for that has seemed to grow shakier as time passes and challenges to such “affirmative action” plans multiply.  Challenges are currently underway in lower courts on that issue in cases involving Harvard University and the University of North Carolina.

One of the larger questions of governance that seems likely to generate controversy is whether the President should have the authority to fire the commissioners who sit on federal regulatory agencies that are supposedly independent of White House control.  That is an issue on which Judge Kavanaugh has taken a position as a judge, urging reconsideration of decades-old precedents limiting such presidential power to dismiss agency members.

Another broad issue over how the government operates is one that is not highly visible to the public but could cause havoc if the Court were to take the step that several of its conservative Justices have been advocating.  They are proposing that the Court reconsider, and perhaps even eliminate, the long-standing doctrines that give federal regulatory agencies wide discretion to choose how they enforce a massive number of laws that involve controls on much of the daily lives of Americans – ranging from clean water and clean air to safe drugs.

Under that doctrine, courts are to show deference to an agency in how it interprets the law that governs its operations, if that law has an ambiguous meaning, and the courts must also show such deference to agencies when they interpret the scope of internal rules on how they operate.   Doing away with such deference in either situation would mean a far greater amount of second-guessing of the agencies’ work by the federal courts.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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