Justice Ruth Bader Ginsburg’s health is in the news again this year. She announced last month that she was being treated with chemotherapy — the fourth time since 1999 that she has battled cancer. After she was diagnosed with pancreatic cancer in 2009, she resisted pressure to retire from the Supreme Court under the Obama administration. With multiple hospital stays this year and the cancer recurrence, many question how long she will be able to stay on the court and whether her tenure will outlast Donald Trump’s presidency. Some liberals continue to express frustration that Ginsburg did not retire under President Barack Obama.

Retirements and replacements at the court occur in different patterns. A potential retirement by Ginsburg harkens back to Justice Thurgood Marshall’s retirement in 1991. Like Ginsburg, Marshall was a liberal leader on the court. Before joining the bench, Ginsburg founded the ACLU Women’s Rights Project, and Marshall established the NAACP Legal Defense and Education Fund. Marshall’s health was in decline during the Reagan years, and once President George H.W. Bush was elected in 1988, he might have guessed he would need to step down before the end of the Bush presidency. Still, Marshall was known to somewhat sarcastically confide to his clerks, “If I die, prop me up and keep on voting,” not wanting a conservative justice to be placed in his stead. In the end, Marshall retired from the court with Bush still president in October 1991, citing health and age. He was replaced by Justice Clarence Thomas, who has become one of the most conservative justices. The replacement of Marshall with Thomas was one of the biggest ideological shifts in a single seat. Continue reading »

Briefly:

• In its latest coronavirus-related order, the Supreme Court on Thursday allowed Rhode Island to move forward with easing a state requirement for voters to sign absentee ballots in the presence of witnesses or a notary. The court rejected an emergency request from national and state Republicans to reinstate the requirement. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have granted the request. Amy Howe has a full analysis of the case (in a story that was first published at Howe on the Court).
• At CNN, Dan Berman writes that the court, in a series of rulings related to the pandemic, “continues to send a clear message” that the justices are uninterested in “stepping in to second-guess state or local officials.”
• In a New York Times opinion column, Linda Greenhouse argues that Chief Justice John Roberts’ crucial separate opinion in June Medical Services v. Russo has paved the way for a recent ruling by a federal appeals court upholding four anti-abortion laws in Arkansas.
• In an op-ed in The Hill, Timothy Snowball and Larry Salzman analyze the court’s emergency ruling last month rejecting a challenge to Nevada’s stay-at-home order. They argue that the concerns expressed by the four dissenting justices in that case – Thomas, Alito, Gorsuch and Brett Kavanaugh – raise important issues about the constitutional limits of other stay-at-home orders.

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

The Supreme Court on Thursday refused to intervene in a dispute over absentee ballots for the upcoming elections in Rhode Island. The justices rejected a request by the Republican National Committee and Rhode Island Republicans to freeze a lower-court order that approved an agreement between state election officials and civic groups to waive a requirement that absentee ballots be signed in the presence of either two witnesses or a notary. In a one-page order, the justices took the relatively unusual step of providing an explanation for a decision issued in an emergency appeal. The one-paragraph, unsigned explanation said that – unlike in other recent election-law cases – state officials in this case support the agreement that the RNC and the Rhode Island GOP asked the court to block. Three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the Republicans’ request. Continue reading »

Briefly:

• At CBS News, Melissa Quinn reports that progressive organizations — mimicking a strategy used by conservatives in recent years – are invoking the Supreme Court as an issue to drive voter turnout. The progressive groups, Quinn writes, have “succeeded in convincing establishment Democrats that the Supreme Court could be critical in motivating voters, made evident by its inclusion in the party’s platform this year.”
• In the second essay in a series at Just Security on the court’s 2019-20 term, Andy Wright argues that one “small, inaccurate assertion” in the court’s opinion in Trump v. Mazars “could profoundly strengthen attorney-client privilege claims before Congress.”
• Now that presumptive Democratic president nominee Joe Biden has chosen Sen. Kamala Harris to be his running mate, Mario Loyola argues in the National Review that Harris’ past statements expressing openness to expanding the size of the Supreme Court “deserve a lot more attention than they’ve gotten.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

This week we highlight cert petitions pending before the Supreme Court that ask the court to assess, among other things, whether Title VII of the Civil Rights Act of 1964 protects uniformed servicemembers and whether Medicaid coverage for certain beneficiaries can be tied to work or other requirements. In Jackson v. Braithwaite, a Black man who served in the Marines sued under Title VII, claiming that he was denied promotions and training opportunities because of his race. The U.S. Court of Appeals for the District of Columbia Circuit held that Title VII applies only to civilian employees, not uniformed servicemembers such as the petitioner. He asks the court to review that decision.

Additionally, the federal government and the state of Arkansas want the court to weigh in on the legality of Medicaid work requirements. In 2018, the secretary of the Department of Health and Human Services began approving state Medicaid programs, including one in Arkansas, that incorporated work and skill-building requirements as conditions of continued eligibility for Medicaid benefits for certain working-age, non-disabled adults. The D.C. Circuit struck down the secretary’s approval as outside Medicaid’s principal objective of providing health coverage. The secretary and the state ask the court to review that decision in Azar v. Gresham and Arkansas v. Gresham.

These and other petitions of the week are below the jump: Continue reading »

The Supreme Court on Tuesday again stepped in to prevent coronavirus-related changes to state election rules. The justices issued an emergency ruling freezing a lower court’s order that would have loosened the requirements for a government-reform coalition in Oregon to add a proposed state constitutional amendment to the state’s November ballot. Amy Howe breaks down the issue in a story for SCOTUSblog that was first published at Howe on the Court. The ruling is the latest in a series of COVID-related election disputes that the court is deciding on its so-called “shadow docket.” Another such dispute – involving Rhode Island’s rules about absentee ballots – is pending at the court this week.

In other news on Tuesday, Justice Elena Kagan rejected a request by the National Collegiate Athletic Association for the court to temporarily block a lower court’s order that allows colleges to pay student-athletes for certain expenses. As Howe reports (in a story first published at Howe on the Court), the lower court’s order opens the door for colleges to compensate athletes for computers, musical instruments and other education-related benefits. Continue reading »

For the fifth time this year, the Supreme Court set aside a lower-court order that would have altered state election rules in response to the coronavirus pandemic. The justices on Tuesday granted an emergency request by the state of Oregon to put on hold a ruling by a federal district judge that would have required the state to relax its requirements for getting a proposed amendment to the state’s constitution on the ballot in the November election. Two justices – Ruth Bader Ginsburg and Sonia Sotomayor – indicated that they would have denied the state’s request. Continue reading »

The Supreme Court declined on Tuesday to block a lower-court ruling that allows colleges and universities to pay some student-athletes for expenses related to education. The National Collegiate Athletic Association and a group of athletic conferences had asked the justices to stop the ruling by the U.S. Court of Appeals for the 9th Circuit from going into effect while they seek review of that decision in the Supreme Court. Justice Elena Kagan, who handles emergency requests from the 9th Circuit, denied the NCAA’s request without explanation and without referring it to the full court – suggesting that she did not regard the application as a close call. Continue reading »

Two more cases involving state election rules during the coronavirus pandemic are before the Supreme Court on an emergency basis this week: one about absentee-ballot requirements in Rhode Island, and another about ballot-initiative rules in Oregon.

In the Rhode Island case, Republican National Committee v. Common Cause Rhode Island, national and state Republicans asked the justices on Monday to temporarily undo a lower court’s order that suspended a requirement for the state’s absentee voters to sign their ballots in the presence of witnesses, Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court). Also on Monday, the parties in the Oregon case, Clarno v. People Not Politicians Oregon, completed supplemental briefing that was requested by Justice Elena Kagan. In that case, the state’s Democratic attorney general is asking the justices to temporarily block a lower court’s order that extended the deadline for a government-reform group to collect enough signatures to add an initiative to the state’s November ballot. The initiative seeks to create an independent commission to draw legislative districts.

Emergency rulings in both cases could come soon. The Republicans in the Rhode Island case asked for a ruling before Thursday, which is the day that the state is scheduled to mail out absentee ballots. The attorney general in the Oregon case asked for a ruling as soon as possible and no later than Aug. 28. Continue reading »

The Republican National Committee and Rhode Island Republicans asked the Supreme Court on Monday to block an order by a federal district court that relaxed the state’s witness requirement for absentee ballots. The two groups argued that the relief they have requested – putting the lower court’s ruling on hold – was compelled by the Supreme Court’s ruling in July in a similar case from Alabama.

Under Rhode Island law, voters who opt to submit absentee ballots must sign their ballots in the presence of either two witnesses or one notary. The state’s governor, Democrat Gina Raimondo, waived the witness requirement for the June presidential primary, but she opted not to do so for either the September primary election or the November general election.

Civic groups, including the League of Women Voters, went to court in late July, arguing that the witness requirement was unconstitutional because of COVID-19. Secretary of State Nellie Gorbea did not defend the witness requirement. Instead, the challengers and Gorbea worked together to negotiate a consent decree that suspended the witness requirement for all Rhode Island voters for the upcoming elections. Continue reading »