The United States Law Week

Impeachment Fight Lurks as Supreme Court Tackles Divisive Issues

Oct. 6, 2019, 8:00 AM

Even before the prospect of impeaching President Donald Trump arose, the U.S. Supreme Court term that opens Monday was going to thrust the justices into the nation’s political wars in the run-up to next year’s election.

In its first full term with two Trump appointees, the court is planning to hear fights over gay and transgender rights, deportation protections and gun regulations. On Friday the justices added an abortion case, the first since Justice Brett Kavanaugh’s confirmation created a stronger conservative majority.

“It will be a momentous term for the rights of individuals,” said David Cole, national legal director of the American Civil Liberties Union.

It will also be a challenging one for Chief Justice John Roberts and his efforts to keep the court as removed as possible from the partisan fray. With Roberts at the helm, the court in its last term managed to sidestep several highly divisive issues -- or at least defer them until now. The new session will finish around the end of June, less than five months before the presidential election.

The challenge could grow exponentially depending on the direction the House impeachment investigation takes. The Supreme Court could be called upon to resolve clashes over congressional subpoenas or presidential claims of executive privilege.

And if the House impeaches Trump, the Constitution requires that Roberts preside over the Senate trial, a duty that would make him the arbiter of any disputes over the governing rules.

For now, the term’s highlights include a group of cases that will affect millions of gay and transgender workers. In arguments set for Tuesday, the court will consider whether federal law bars discrimination on the basis of sexual orientation and gender identity.

Although the Supreme Court legalized same-sex marriage nationwide in 2015, gay and transgender people can still be fired from their jobs in much of the country. Fewer than half of the states bar such discrimination through their own civil rights statutes.

Skydiving Instructor

The court will resolve the sexual orientation issue using the cases of Gerald Bostock, a former employee at a Georgia juvenile court, and Donald Zarda, a now-deceased skydiving instructor. Both men sued claiming they were fired because they were gay.

The gender-identity case involves Aimee Stephens, who was fired from her job as a Michigan funeral home director after telling the owner she was preparing to live openly as a woman.

The main federal job-bias law, known as Title VII, outlaws discrimination because of sex, as well as race, religion and a handful of other factors. It doesn’t explicitly mention sexual orientation or gender identity.

The workers and their supporters say past Supreme Court decisions have interpreted Title VII broadly. They contend that discriminatory acts against gay and transgender people are forms of sex bias.

The employers, along with the Trump administration, say lawmakers weren’t thinking about sexual orientation and gender identity when they passed Title VII as part of the 1964 Civil Rights Act.

Although the cases might prove ideologically divisive, the focus on Title VII’s wording might mean that Roberts won’t end up as the deciding vote, according to Paul Clement, a Washington lawyer at Kirkland & Ellis.

The best chance for the workers might be to pick off someone like Justice Neil Gorsuch, a Trump appointee who places an especially heavy emphasis on the text of a disputed statute, Clement said.

“I think the way you probably get to five, if you can on this case, is to start with the left side of the court and then get a textualist who just doesn’t care what they thought in 1964 at all,” said Clement, who served as President George W. Bush’s top Supreme Court lawyer.

Obama’s DACA Program

In November the court will take up Trump’s bid to end President Barack Obama’s Deferred Action for Childhood Arrivals program, which protects 700,000 young people who came to the U.S. illegally as children. DACA, as the program is known, shields applicants from deportation and lets them seek work permits.

Lower courts blocked Trump from rescinding the program, saying the administration’s primary explanation -- that DACA is illegal -- isn’t adequate. The Supreme Court delayed acting on Trump’s bid for a hearing for five months before agreeing in June to hear the case.

The administration starts with an advantage because it has multiple ways to win the case. Even if the court doesn’t agree that DACA is illegal, the justices could accept the reasons given in a June 2018 memo by then-Secretary of Homeland Security Kirstjen Nielsen. Among other things, Nielsen said the administration believed a case-by-case approach would make for better immigration policy.

“Unlike most playoff series, the government only has to win one out of seven to win this case,” said Marty Lederman, a professor at Georgetown Law Center in Washington. “I happen to think that the vast majority of the seven arguments are not very strong at all, but a couple of the policy reasons that Nielsen articulated probably are.”

A victory for the administration wouldn’t immediately open all 700,000 DACA recipients to deportation, but some could lose their shield by the end of next year.

Guns and Abortion

The court is scheduled to hear its first case in a decade on the reach of the Second Amendment’s protections for gun rights. The case, scheduled for argument Dec. 2, is a challenge to New York City’s strict limits on where licensed handguns can be taken.

But it’s not clear the court will ever rule. After the justices agreed to get involved, the city loosened the restrictions, and officials now are asking the court to dismiss the case as moot. Gun-rights advocates are urging the court to keep the case and issue a ruling.

“If the court reaches the merits here it seems likely that it will hold that the former restrictions were unconstitutional,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center. “The significance of that decision depends on how the court gets there.”

The abortion case centers on a Louisiana law that requires doctors who perform the procedure to get admitting privileges at a local hospital. The law is similar to a Texas measure the court struck down in 2016, before Trump nominated Kavanaugh to succeed the now-retired Justice Anthony Kennedy.

The court’s new composition means it could overturn the 2016 ruling, or at least limit its impact to the particular circumstances of Texas. And the case promises to give the clearest picture yet of whether Roberts and the reconstituted court will move quickly to roll back abortion rights. Opponents of the law say it would leave Louisiana with only one clinic.

Puerto Rico and the Appalachian Trail

Other cases on the court’s docket include:

  • A clash that could upend the work of the oversight board charged with pulling Puerto Rico out of its record bankruptcy. The justices will hear arguments Oct. 15 on a lower court ruling that said the Financial Oversight and Management Board’s members were appointed in violation of the Constitution.
  • A church-state fight over a Montana tax-credit program that generates scholarship money for students who attend private schools. The Montana Supreme Court struck down the program as violating a state constitutional provision that bars aid to religious schools. Three parents who want to use the tax credits at Christian schools say that ruling violates the Constitution.
  • A new clash over Dominion Energy Inc.’s proposed $7.5 billion Atlantic Coast Pipeline. The court said Friday it will rule on a key permit that would let the natural-gas line cross under the Appalachian Trail.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Laurie Asséo, John Harney

© 2019 Bloomberg L.P. All rights reserved. Used with permission.

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