A look back at 2019: A tale of two terms?
Any review of a calendar year at the Supreme Court necessarily includes two different terms: the term that ends in June and the new one that begins in October and will run into the following year. But a look back at 2019, in particular, reveals two very different terms. In the wake of the June 2018 retirement of Justice Anthony Kennedy, who for many years had been the court’s “swing justice,” and the contentious confirmation hearing for Justice Brett Kavanaugh, Kennedy’s successor, the term that ended in June 2019 was a relatively quiet one. The court issued major rulings on partisan gerrymandering and the census, but the conventional wisdom was that the justices were trying to keep a lower profile. By contrast, it seems unlikely that the Supreme Court will be able to fly under the radar in its 2019-2020 term. The justices have already heard oral argument on a wide variety of hot-button issues ranging from immigration and employment protection for LGBTQ workers to the Second Amendment, and they agreed to tackle even more – including abortion, religious freedom and the battle over access to the president’s financial records – in the new year.
On January 4, the justices injected considerable interest into what had been a fairly humdrum 2018-2019 term with the announcement that they would once again tackle the issue of partisan gerrymandering – that is, the practice of drawing redistricting maps to give one political party an advantage at another party’s expense. The justices had heard oral arguments in two cases involving allegations of partisan gerrymandering during the previous term but ultimately had not decided either case on the merits. That set the stage for the issue to return in two separate cases: a challenge to a single federal congressional district drawn by Democratic election officials in Maryland and a challenge to North Carolina’s 2016 federal congressional map, drawn by the state’s Republican legislators. The justices set the case for argument in March.
When the justices returned to the bench on January 7, one justice was missing: Justice Ruth Bader Ginsburg, who was recovering from surgery in December to remove two cancerous growths from her lungs. It was the first time since she joined the court in 1993 that the then-85-year-old Ginsburg – who was treated for colon cancer in 1999 and pancreatic cancer in 2009 – had missed arguments, but the court’s Public Information Office announced that Ginsburg was working from home and would participate in January’s cases by reading the briefs and transcripts of the oral arguments.
On January 9, Kavanaugh issued his first opinion. Continuing the tradition of a unanimous ruling for a first opinion, the decision in Henry Schein Inc. v. Archer & White Sales Inc. held that courts should enforce an agreement to arbitrate that gives the arbitrator the authority to decide whether a dispute should go to arbitration even if the court believes that the arbitration claim has no merit.
On January 15, the court issued its first 5-4 decision of the term, in Stokeling v. United States. Justice Clarence Thomas wrote for the court, which ruled that state robbery laws that require resistance “overcome by physical force” can satisfy the federal Armed Career Criminal Act’s prior-conviction requirement even if the amount of force used is minimal. By the end of June, the justices would issue 21 5-4 opinions, with 10 different voting lineups. Each of the court’s five conservative justices would vote with the court’s liberal bloc at least once.
On January 22, the justices added another blockbuster case to their docket, this time for the 2019-2020 term: a challenge to a New York City regulation that banned the transport of guns anywhere outside the city limits, including to shooting ranges for target practice and vacation homes. It had been nearly a decade since the justices had last heard oral argument in a Second Amendment case, and gun-rights supporters hoped that the justices might not only strike down the city’s rule but also say more about whether the right to have a gun extends outside the home.
On the same day, the court declined to take up a challenge to the Trump administration’s ban on military service by most transgender individuals. After federal trial courts in California and Washington barred the government from enforcing the ban, the federal government asked the justices to review those rulings right away, without waiting for a federal appeals court to decide the case. The Supreme Court gave the government a partial victory: Although it refused to review the trial courts’ rulings immediately, it did allow the government to enforce the ban while the appeals are going on in the lower court.
Although the justices were officially in recess for much of the month, they were still burning the midnight oil on February 7. First, a divided court granted Alabama’s request to allow the execution of Domineque Ray to go forward. Ray, who is Muslim, had argued that he should be allowed to have an imam at his side in the execution chamber because a Christian inmate would be allowed to have a minister there. The court’s four more liberal justices dissented from the order, with Justice Elena Kagan calling the decision to lift the stay of execution imposed by the U.S. Court of Appeals for the 11th Circuit “profoundly wrong.”
Later that night, the justices barred the state of Louisiana from enforcing a law that would require doctors who perform abortions to have the right to admit patients at nearby hospitals. A group of abortion providers in that state had challenged the law, arguing that it was virtually identical to a Texas law that the Supreme Court had struck down as unconstitutional in 2016, but the U.S. Court of Appeals for the 5th Circuit rejected their challenge. The abortion providers then went to the Supreme Court, asking the justices to block the state from enforcing the law at least until they could file a petition for review of the 5th Circuit’s decision. With Kennedy, who had joined the more liberal justices to invalidate the Texas law in 2016, now retired, the abortion providers needed a fifth vote to put the law on hold. They found it in Chief Justice John Roberts, who had been a dissenter in the Texas case three years ago.
On February 19, Ginsburg officially returned to the bench for oral arguments. Ginsburg’s return did little, however (remember, there’s no video), to stem conspiracy theories that she was still very ill or even dead.
One day later, Ginsburg demonstrated that she had indeed been working from home during her absence, releasing a unanimous opinion for the court in Timbs v. Indiana. The justices agreed with Tyson Timbs, an Indiana man whose Land Rover – which he purchased with the proceeds of his father’s life insurance policy – was seized after he pleaded guilty to drug charges, that the Eighth Amendment’s ban on excessive fines applies to the states under the 14th Amendment’s due process clause.
February continued to be a fairly good month for death-row inmates at the Supreme Court. By a vote of 5-3, the justices sent the case of Vernon Madison, who is on death row in Alabama, back to the lower courts for them to consider whether Madison’s dementia has left him so incompetent that the Eighth Amendment’s ban on cruel and unusual punishment bars the state from executing him. Roberts joined the court’s four more liberal justices in voting to give Madison’s case another look; Kavanaugh did not participate in the case, which was argued before he joined the court.
The justices also issued a sharp rebuke to the Texas courts that had reinstated the death penalty for an inmate, Bobby James Moore, even after the local district attorney’s office had agreed that the Eighth Amendment bans Moore’s execution because he is intellectually disabled. In an unsigned opinion issued without briefing on the merits or oral argument, the Supreme Court chastised the Texas courts for repeating the same analysis “we previously found wanting,” and for relying on many of the same stereotypes about the intellectually disabled that the Supreme Court had specifically prohibited in an earlier ruling in Moore’s case. Like the local district attorney’s office, the justices concluded that “Moore has shown he is a person with intellectual disability.”
On March 26, the justices heard oral argument in the two partisan-gerrymandering cases, Rucho v. Common Cause, the challenge to North Carolina’s federal congressional map, and Lamone v. Benisek, the challenge to a single federal congressional district in Maryland. Two issues occupied most of the justices’ time at oral argument: whether courts should play a role in partisan-gerrymandering cases at all and, to a lesser extent, if so, what standard should be used to determine whether partisan gerrymandering has occurred. At the end of a long morning, the challengers’ hopes seemed to hinge (as is so often the case) on either Roberts’ or Kavanaugh’s joining the court’s four more liberal justices, but it was hard to see a clear path to victory for opponents of partisan gerrymandering.
Six weeks after lifting the stay of execution for a Muslim inmate in Alabama who wanted to have an imam in the death chamber with him, the justices intervened in the execution of a Buddhist prisoner in Texas, Patrick Murphy, who wanted to have a spiritual advisor at his side. Kavanaugh wrote a separate opinion in which he agreed with the court’s decision. He stressed not only that Murphy (unlike the Alabama inmate) had asked to have his spiritual advisor at his side a month earlier, but also that Texas allows Muslim and Christian inmates to have state-employed spiritual advisors in the execution chamber. A few days later, Texas responded by announcing that all spiritual advisors would be barred from the execution chamber. But the saga continued several weeks later, when Justice Samuel Alito filed a dissent from the order in Murphy’s case that was joined by Justices Clarence Thomas and Neil Gorsuch. Alito acknowledged that Murphy had raised “serious questions” about religious liberty, but he nonetheless criticized the order putting the execution on hold as “seriously wrong” because it was filed “inexcusably late.”
On April 12, the justices cleared the way for Alabama to execute Christopher Price, who was on death row for the 1991 murder of minister Bill Lynn. Price had argued that executing him by lethal injection, as the state had planned, would violate the Eighth Amendment’s ban on cruel and unusual punishment. Instead, Price wanted the state to execute him using lethal nitrogen gas. In an order issued shortly before 3 a.m., the justices lifted a stay of execution that the lower courts had imposed, but the ruling came so late that the state had already called off the execution. In a sharp dissent that gave a rare glimpse into the process that the justices use to decide such appeals, Justice Stephen Breyer complained that he had asked his colleagues to delay acting on the state’s request so that the justices could discuss the case at their private conference the next morning, but they had declined to do so. A month later, when the justices formally denied Price’s petition for review, Thomas wrote a statement (joined by Alito and Gorsuch) to express his agreement with the decision to deny review. Thomas suggested that Breyer’s rationale for delaying Price’s execution “does not withstand even minimal legal scrutiny” and would in fact “harm victims.” Price was executed on May 30.
The 2019-2020 term got even more interesting with the announcement on April 22 that the justices would review a trio of cases involving whether federal employment discrimination laws protect LGBT employees. After considering the petitions for review at 11 consecutive conferences, the justices agreed to decide whether the ban on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 extends to LGBT employees.
On April 23, the justices heard oral argument in one of the highest-profile cases of the term, the challenge to the Trump administration’s decision to include a question about citizenship on the 2020 census. The justices seemed deeply divided. The court’s more liberal justices seemed skeptical about the Trump administration’s rationale for asking the citizenship question, with Kagan characterizing the government’s proffered reason – a request by the Department of Justice for citizenship data to better enforce federal voting rights laws – as “contrived.” But the court’s more conservative majority seemed to regard the decision as a reasonable one: Kavanaugh, for example, noted that the United Nations recommends using a citizenship question.
With oral arguments finished for the year but the end-of-term rush to issue opinions still a month away, May was relatively quiet. The court’s effort to avoid controversy was on full display at the end of the month, when it finally acted on a petition from Indiana asking the justices to weigh in on a state law regulating abortions. After considering the case at 15 conferences, the justices upheld one provision of the law, which required fetal remains to be buried or cremated. But they left in place a lower-court ruling that struck down a different provision banning abortions based on the race, sex or disability of the fetus, which means that the state cannot enforce it. Not all the justices were on board with this disposition of the case: Ginsburg and Justice Sonia Sotomayor would have gone further and struck down the “fetal remains” provision, while Thomas complained that recognizing a constitutional right “to an abortion based solely on the race, sex, or disability of an unborn child” would “constitutionalize the views of the 20th-century eugenics movement.”
A few days later, the challengers in the census-citizenship case notified the justices about new evidence suggesting that a Republican redistricting strategist, Thomas Hofeller, had played a key role in the decision to add the citizenship question in an effort to create an advantage for whites and Republicans in future elections. The story behind the new evidence sounds like the plot of a movie: Hofeller’s estranged daughter had obtained the evidence in Hofeller’s computer files after his death, and handed it over to a watchdog group in North Carolina after she called the group looking for a referral for an estate lawyer for her mother. The challengers argued that the new evidence showed that the government’s actual reason for adding the citizenship question “was the diametric opposite of its stated reason,” while the government dismissed the allegations as “meritless” and an “eleventh-hour effort” to “derail the Supreme Court’s resolution” of the case.
As it is most years, June was primarily about opinions, which came fast and furious right to the end of the 2018-2019 term. Among the most hotly anticipated were the court’s rulings on partisan gerrymandering and the census. Both opinions were written by Roberts, who as the chief justice has the power to assign the authors when he is in the majority.
By a vote of 5-4, with the justices divided along ideological lines, the court ruled that federal courts should stay out of disputes over partisan gerrymandering. The decision ended a long struggle by the court to determine whether partisan gerrymandering is the kind of issue that courts should review and, if so, what standards they should use to determine when the consideration of politics in map-drawing goes too far and violates the Constitution. Kagan lamented that the “practices challenged in these cases imperil our system of government. With respect and deep sadness,” she concluded, in an opinion that she delivered from the bench, “I dissent.”
The chief justice was joined by the court’s four more liberal justices for the key part of his ruling in the census-citizenship case. His conservative colleagues agreed with him that the Constitution does not prohibit the Secretary of Commerce from including the citizenship question, and that federal laws give the secretary significant latitude in deciding what questions to use on the census questionnaire. However, they rejected the majority’s conclusion that the government’s rationale – that the Department of Justice had asked for citizenship data to better enforce federal voting-rights laws – was pretextual. The court sent the case back to the Department of Commerce for it to provide a better explanation, although it wasn’t clear exactly what that would mean: The federal government had repeatedly told the justices that it needed to finalize the census questionnaire by June 30, so that it could start printing the hundreds of millions of forms needed for the census.
The justices issued two other major decisions in June. One decision, involving administrative law, proved to be mostly a disappointment to conservatives. The justices left in place a longstanding line of cases that instruct courts to defer to a federal agency’s interpretation of its own regulation. Kagan’s opinion for the majority made clear that the doctrine will not apply in every scenario in which an agency is interpreting its own rules, but Gorsuch complained that the ruling had left the doctrine a “paper tiger.” The chief justice, however, wrote separately to suggest that Kagan’s and Gorsuch’s approaches “should lead in most cases to the same general destination.”
The justices also allowed a physical landmark to stand: a 40-foot-tall cross erected nearly a century ago in the Washington, D.C., suburbs to honor local soldiers killed in World War I. A group of local residents had argued that the cross, which is on public land and maintained by the state, violates the Constitution’s establishment clause, which bars the government from establishing an official religion or favoring one religion over another. By a vote of 7-2, the justices agreed that the cross should be allowed to remain. Writing for the majority, Alito explained that although the cross “came into widespread use as a symbol of Christianity,” it “has also taken on a secular meaning” – particularly as a “central symbol” of World War I. Moreover, Alito added, when deciding whether historical religious monuments can stay in place, there should be a presumption that they are constitutional; for many people, he continued, taking down such monuments would be regarded as being hostile to religion, rather than restoring neutrality.
Before they left for their summer recess, the justices added yet another blockbuster to their merits docket for the next term by agreeing to take up the battle over the Trump administration’s decision to terminate the Deferred Action for Childhood Arrivals program, known as DACA. Established by executive order during the Obama administration, DACA allows young adults who came to this country illegally as children to apply for protection from deportation, which can in turn lead to benefits such as the ability to work legally in the United States and to obtain a driver’s license.
In a statement in the Rose Garden at the White House on July 11, President Donald Trump announced that the federal government would end its efforts to include a citizenship question on the census. The declaration ended a roller-coaster ride that had followed the Supreme Court’s June 27 ruling that blocked the government from including the question. After the government initially indicated that the census questionnaire would go to the printer without the question, the president tweeted that the news was “fake,” and government lawyers later suggested that the administration was looking for a “path forward” to include the question after all.
On July 16, retired Justice John Paul Stevens passed away at the age of 99 from complications of a stroke. Stevens, who retired in 2010, had enjoyed an active retirement that included writing three books and an op-ed in the New York Times suggesting that the Second Amendment should be repealed. In remarks at his funeral, Ginsburg revealed that in the last week of his life Stevens had traveled to Portugal – where, she said, “his mind remained vibrant.”
On July 26, a divided court allowed the federal government to go ahead with its plans to fund the wall along the U.S. border with Mexico. Two groups, the Sierra Club and the Southern Borders Communities Coalition, argued that the government could not spend $2.5 billion in Pentagon funds that the Department of Defense had redirected to its counter-narcotics funds so that the money could be used for construction of the wall. A lower court agreed and blocked the government from using the money, but the Supreme Court granted the government’s request to allow it to use the money while it appeals the lower court’s ruling.
On August 23, the Supreme Court’s Public Information Office announced that Ginsburg had recently finished a three-week course of radiation therapy to treat a tumor on her pancreas. Ginsburg had been treated for pancreatic cancer in 2009; the court announced that this new tumor had prompted Ginsburg to miss her annual trip to Santa Fe but that the 86-year-old justice had “otherwise maintained an active schedule,” and no “further treatment is needed at this time.”
On September 11, the court allowed the federal government to enforce a new rule that would prohibit most immigrants from applying for asylum if they pass through another country, such as Mexico, without seeking asylum there before arriving in the United States. The government had enacted the rule to deal with the crisis along the U.S.-Mexico border, but a federal judge in California blocked the government from implementing the rule anywhere in the United States. Sotomayor (joined by Ginsburg) dissented from the ruling, which gave the government permission to put the rule into effect while it appeals the lower court’s decision.
One day later, Roberts “whisperer” Joan Biskupic of CNN reported that Roberts had initially intended to vote for the Trump administration in the census-citizenship case, but changed his mind at some point between the late-April argument and the announcement of the decision in late June.
The justices returned from their summer recess for the “long conference,” the first regularly scheduled meeting to consider new petitions for review since June. The five cases that they granted from this conference included the challenge to Louisiana’s law requiring abortion providers in that state to have admitting privileges at nearby hospitals. The law has been on hold since the justices issued their late-night stay in February. At the same time, the justices also agreed to hear an appeal from the state, which had asked them to consider whether the abortion providers have a legal right to sue – known as standing – on behalf of their patients. The two questions will be argued together in early 2020.
The justices also turned down New York City’s request to dismiss the Second Amendment challenge to its since-repealed gun restrictions. They left open the possibility, however, that they could return to the question of whether the case still presents a live controversy at the oral argument in December.
The justices took the bench for the first oral arguments of the new term on October 7. Shortly before oral arguments resumed, the court announced a new “two-minute rule,” which gives arguing lawyers two minutes to make their case before the justices start asking questions. Some justices struggled with the change – most notably, Sotomayor, at whom many speculated the rule was directed. Sotomayor jumped the gun a few times during the fall, including in an argument involving whether federal environmental laws bar state lawsuits to restore hazardous-waste sites. Lisa Blatt, the lawyer whom Sotomayor interrupted, was unfazed. “We’re good,” she told Sotomayor.
On October 8, the justices heard three of the biggest cases of the term, in which the court will decide whether federal employment law protects LGBTQ employees. We won’t know the outcome until sometime in 2020, but the oral arguments did reveal that Alito is apparently not a fan of the television show “Saturday Night Live”: When Alito asked Pamela Karlan, who represented the gay employees in two cases, about an employer who does not know the biological sex of an employee, Karlan referred to “Saturday Night Live Pat,” the famously gender-ambiguous character played by Julia Sweeney during the 1990s. “I’m not familiar with that,” Alito responded.
On October 18, the justices announced that they would weigh in on a challenge to the leadership structure of the Consumer Financial Protection Bureau. A law firm that was under investigation by the CFPB for its telemarketing practices argued that the structure of the CFPB is unconstitutional because the bureau is headed by a single director, who wields significant power but can only be fired by the president for a good reason. The CFPB itself agreed that its structure is unconstitutional, so the justices appointed a “friend of the court” to defend the structure: Paul Clement, who served as the U.S. solicitor general during the George W. Bush administration.
Long lines formed outside the court in early November in anticipation of the oral argument in the challenge to the Trump administration’s decision to end DACA. There were two issues before the court: whether the decision to end DACA is one that the court can review at all; and, if so, whether the decision was lawful. At the end of 80 minutes of debate, several justices seemed to be concerned that the Trump administration’s decision-making process had not sufficiently considered the effects of ending the program. Lawyers for the challengers urged the justices to send the case back for a “do-over,” because the Trump administration might reach a different decision if it had to take public responsibility for ending DACA, rather than simply arguing (as it had previously) that it was required to end the program because it was illegal. But U.S. Solicitor General Noel Francisco told the justices that the Trump administration had decided to end DACA for a variety of reasons, and that the government “owns” the decision. We’ll know sometime next year whether a majority of justices believe that a “do-over” might make a difference.
Fans of the “Notorious RBG” were concerned at the end of November, when the Supreme Court announced that the octogenarian justice had been hospitalized with “chills and fever.” But Ginsburg was discharged a few days later and was back on the bench and actively asking questions during the court’s December argument session. As at the end of many argument sessions, Thomas extended a hand to help Ginsburg as she walked down the steps to leave the bench.
The highlight of the December argument session came right at the outset, when the justices heard oral argument in the challenge to the New York City regulation that barred gun owners from taking their guns outside the city. Although the justices had rejected the city’s suggestion over the summer that the case should be dismissed because it had repealed the rule, so that the gun owners had gotten everything they had wanted from the lawsuit, the issue of whether the case was “moot” still took up most of the justices’ time. The gun owners maintained that there was still a live controversy, and the federal government – which had filed a “friend of the court” brief in the case – agreed, but for a different reason.
The justices turned down a plea from the federal government to allow it to carry out several executions that had been scheduled beginning in December. A federal district judge in Washington had ruled that federal law requires the government to carry out executions using not only the same method but also the exact same protocol as the state where the execution is taking place. The government filed an emergency appeal with the Supreme Court on December 2, asking the justices to allow the executions to go forward even if it meant that some inmates might be executed before their appeals were resolved. On December 6, the court rejected the government’s appeal, although it added that it expects the court of appeals to “render its decision with appropriate dispatch.”
Just when you thought that the term couldn’t get any more interesting, the justices announced that they would hear oral argument in three cases stemming from efforts to obtain Trump’s financial records. In one case, a grand jury in Manhattan had issued a subpoena to Mazars, the president’s accounting firm, seeking several years’ worth of tax returns as part of a grand-jury investigation, while in the other two cases congressional committees had issued subpoenas to Mazars as well as Deutsche Bank and Capital One, two of the president’s primary lenders. The president went to court, seeking to block Mazars and the banks from handing over the documents, but in all three cases the federal courts of appeals upheld the subpoenas. On December 13, the justices agreed to weigh in, putting the subpoenas on hold until the issues are resolved sometime next year.
And in a surprise set of grants a few days later, the justices agreed to take another look at when employees of religious organizations can sue their employers. Two Catholic schools in California had asked the justices to review rulings by the U.S. Court of Appeals for the 9th Circuit holding that two teachers could sue the schools for employment discrimination because they are secular, rather than religious, employees.
But the justices declined to add several other high-profile issues to their docket, including a challenge to a Kentucky law that requires doctors, before performing an abortion, to conduct an ultrasound that includes both describing and displaying the image to the patient. They also denied a petition for review from Boise, Idaho, which had asked the justices to weigh in on the constitutionality of a city ordinance that banned camping or sleeping in public spaces. A group of homeless and formerly homeless residents argued, and the U.S. Court of Appeals for the 9th Circuit agreed, that the law violated the Eighth Amendment’s ban on cruel and unusual punishment when it was used to impose criminal penalties against homeless people who were sleeping outside because the city’s shelters were full.
On December 16, Curtis Flowers was released on bail in Mississippi after serving 23 years in prison for the murder of four people in a furniture store. In Flowers’ first four trials, the district attorney had tried to strike all 36 prospective black jurors; Flowers was convicted at a sixth trial, in which the same district attorney struck five of six prospective black jurors. By a vote of 7-2, the justices reversed Flowers’ death sentence in June. In an opinion by Kavanaugh, the court agreed that the jury selection in his case violated the Constitution.
The Supreme Court is now in recess until 2020. On December 31, the chief justice is expected to issue his year-end report on the federal judiciary. Last year’s report focused on the judiciary’s response to allegations of sexual misconduct in the workplace, but it seems less likely that this year’s report will address one of the hottest topics in the news right now: the impeachment of President Donald Trump and the upcoming trial, over which the chief justice will preside. Whatever the focus of the 2019 report, it is clear that 2020 has the potential to be one of the most consequential years at the Supreme Court in recent history. Stay tuned.
This post was originally published at Howe on the Court.