People For the American Way

Our Rights Are On the Line in the 2019-2020 SCOTUS Term

Our Rights Are On the Line in the 2019-2020 SCOTUS Term

The Supreme Court’s 2019-2020 term opens at a time of crisis for the Constitution and the rule of law. The president’s corruption and admitted unlawful acts have prompted the House of Representatives to formally initiate an impeachment investigation. Trump administration officials are engaged in a massive resistance campaign against any congressional oversight. The attorney general has regularly put Trump’s political interests ahead of the rule of law, national security, and the integrity of the Justice Department.

The framers designed a Constitution with checks and balances to protect the country from a lawless president and to ensure that all Americans can be assured the protections of the rule of law. The Supreme Court is a vital part of that system. But it has become dominated by narrow-minded elitists who put the interests of the rich and powerful ahead of the rest of us, regardless of what the law requires.

Two of the justices were selected by the most corrupt president in American history, and one of them—Brett Kavanaugh—sits on the Court only because the Republican Senate engaged in a notoriously deficient confirmation process. It is this Court that will be deciding cases addressing issues including:

  • Job discrimination against LGBTQ+ people;
  • Racial discrimination in contracting;
  • Dreamers’ right to live in America;
  • Attempts to restrict abortion rights;
  • Direct funding of religious education;
  • Corporate mistreatment of consumers; and
  • Efforts to evade the Clean Water Act.

LGBTQ+ Equality

Job discrimination on the basis of gender identity and sexual orientation

Bostock v. Clayton CountyAltitude Express v. ZardaR.G. Harris Funeral Homes v. EEOC

On October 8, the second day of the term, the Court will hear oral arguments in three cases having an enormous impact on workplace discrimination against LGBTQ+ people. They present a clear test of whether the ultra-conservative justices will ignore a statute’s plain text and unambiguous Supreme Court precedent just to avoid recognizing LGBQ+ equality. The Court should affirm that Title VII’s existing prohibition against discrimination “because of … sex” includes discrimination on the basis of gender identity (Harris Funeral Homes v. EEOC) and on the basis of sexual orientation (Bostock v. Clayton County, consolidated with Altitude Express v. Zarda).

A plain reading of the text of Title VII makes it clear that its prohibition against sex discrimination includes the specific examples of bias based on gender identity and sexual orientation.

When the sex someone was assigned at birth affects whether they can keep their job, it is obviously discrimination “because of sex.” Aimee Stephens had worked for six years as a funeral director at Harris Funeral Homes in Michigan, presenting as a man (the sex she was assigned at birth). But when Stephens told the business owner that she was a woman and would be presenting as a woman, she was fired. Had Stephens’ assigned sex at birth been different, her employer would not have fired her for living openly as a woman. She filed a claim with the Equal Employment Opportunity Commission (EEOC), which sued the funeral home for its violation of Title VII. The Sixth Circuit ruled in her favor, and Harris—supported by numerous anti-LGBTQ+ organizations—has appealed.

Similarly, the text of Title VII can’t reasonably be interpreted to exclude sexual orientation. Don Zarda was fired from his job as a skydiving instructor at Altitude Express for being gay. He has since died, but his widower Bill Moore and his sister Melissa Zarda have continued to pursue justice in the courts. If Don had been a woman, Altitude Express would not have fired her for being in a relationship with a male. The same is true for Gerald Lynn Bostock, a child welfare services coordinator for Clayton County, Georgia, who was fired because he was gay.

Reinforcing the textual argument is a landmark Supreme Court precedent from 1989. In Price Waterhouse v. Hopkins, the Court held that employment actions based on stereotypes of how men and women should look and behave constitute prohibited sex discrimination under Title VII. This was recognition that sex discrimination permeates our society in ways both obvious and subtle, and that Congress passed Title VII to eradicate it from the workplace in all its manifestations. As the plurality opinion noted:

[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. [internal quotation marks removed]

Discrimination against LGBTQ+ people is a way of targeting individuals who are not acting, feeling, or self-identifying in ways that are considered culturally “correct” for their sex. In our society, a person has traditionally been expected to love someone of the other sex, not someone of the same sex. Similarly, a person has been expected to think of oneself and present oneself as male or female based exclusively on personal anatomy. As often occurs, these societal expectations have never reflected reality or been just. Straying from the expectations of one’s sex has been treated with cruelty and brutality from society at large, including sometimes by the government. Anti-LGBTQ+ discrimination is exactly the kind of stereotype-based mistreatment that Price Waterhouse recognized as prohibited by Title VII.

The issues here are straightforward and have been increasingly affirmed by the federal government and the federal judiciary in the Second, Sixth, and Seventh Circuits. The Obama administration took this position at the EEOC and in the courts. Indeed, it was only because the Trump administration changed the government’s policy that the Justice Department now urges the Court to permit workplace discrimination against LGBTQ+ people, despite the EEOC’s continued view to the contrary.

And despite the decisions in the circuit courts that affirmed Title VII’s protections for LGBTQ+ individuals, the impact of President Trump’s judicial nominees can be seen in other circuits. In theBostock case, Trump Eleventh Circuit judges Kevin Newsom and Lisa Branch voted with the majority against en banc reconsideration of an outdated circuit precedent against equality that long predated Price Waterhouse, thereby keeping the door open to discrimination on the basis of sexual orientation. And in a transgender discrimination case that was decided against the employee on unrelated grounds (Wittmer v. Phillips 66), Trump judge James Ho nevertheless wrote a concurrence that Title VII permits job discrimination against LGBTQ+ people. He concluded that:

If you can demonstrate that your employer will hire transgender men but not transgender women, or gay men but not lesbian women, or vice versa, you may well have a claim of sex discrimination.

This parallels the argument made by the employers and their supporters in the cases before the Supreme Court: It is not sex discrimination if both men and women alike are fired for presenting as the “wrong” gender or for dating the “wrong” sex. It is also reminiscent of the argument repudiated by the Court in Obergefell that marriage bans didn’t discriminate because men and women alike were prohibited from marrying people of the same sex.

At the Supreme Court, the outcome may well be determined by Trump’s justices. Anthony Kennedy authored all of the Court’s major rulings recognizing LGBTQ+ equality, but he has been replaced by Justice Kavanaugh, who the far Right hopes will be part of their efforts to strip basic rights, liberties, and dignity from LGBTQ+ people. As Kennedy wrote in 2018’s Masterpiece Cakeshop case, our nation has moved past the time when LGBTQ+ people can be treated—and mistreated—as outsiders in our society:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.

Joining him in this powerful guidepost for the judiciary were Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch. Two additional justices—Ginsburg and Sotomayor—agreed with this sentiment in their dissent.

Oral arguments are scheduled for October 8. Our nonpartisan affiliate, PFAW Foundation, has joined a friend of the court brief on the side of the employees.

The Safety and Lives of Immigrants

Deferred Action for Childhood Arrivals (DACA)

Department of Homeland Security v. Regents of the University of CaliforniaTrump v. NAACPMcAleenan v. Vidal

The Trump administration has numerous policies targeting immigrant communities, one of which is the termination of the highly successful Deferred Action for Childhood Arrivals (DACA) program, which provides protection against deportation for many immigrants who were brought into the country as children. These three cases (consolidated under DHS v. Regents of the University of California) pose the question of whether the administration acted lawfully when it terminated the program. (Lower courts have generally agreed that the administration acted unlawfully, and there is currently a nationwide injunction keeping DACA in place.)

When the Acting Secretary of Homeland Security announced the rescission, the only rationale given to the public was a bare statement by then-Attorney General Jeff Sessions that the policy was unlawful. It also cited litigation initiated by Texas that had enjoined enforcement of a different policy (DAPA/DACA+) and had reached the Supreme Court. But as Sessions surely knew, the Court had divided evenly, simply issuing a summary affirmation of the judgment of the court below. Its decision had no precedential value. Moreover, the Texas district court had expressly stated that it was not addressing the original DACA.

DACA supporters point out that the Administrative Procedure Act (APA) requires federal agencies to examine the relevant data and articulate a satisfactory explanation when they reverse policies. That means they must show the public that there is a rational connection between the facts they find and the choices they make. At the time of rescission, the Department of Homeland Security possessed the Justice Department’s original legal analysis from the Obama administration explaining how DACA complied with the law. Since Sessions’ conclusory assertion did not provide any explanation why that reasoning had been flawed, the rescission was “arbitrary and capricious” under the Administrative Procedure Act and should not be upheld by the courts.

The Trump administration argues that its decision isn’t even reviewable by a court in the first place because it is an area recognized as being completely within an agency’s discretion. But DHS had stated it was rescinding DACA because it was not lawful—in other words, it claimed to have no discretion. That is a legal question reviewable by the courts.

Several months after announcing the rescission, DHS issued a memorandum providing new explanations to support the decision made earlier. But these are after-the-fact justifications published after litigation setbacks. Under the rule of law, agencies cannot simply make up new policy rationales during litigation.

Indeed, the way Trump has carried out his efforts to harm Dreamers by rescinding DACA embodies his lawless approach to the presidency, and it is the constitutional obligation of the Supreme Court to protect the rule of law and prevent any president from exercising unchecked power.

Oral arguments are scheduled for November 12. Our nonpartisan affiliate, PFAW Foundation, has joined an amicus brief against the repeal of DACA.

Liability for a border agent who shot an unarmed Mexican child across the border fence

Hernández v. Mesa

The Court will address whether the parents of Sergio Adrián Hernández Güereca can sue border patrol officer Jesus Mesa for killing their 15-year-old son. Sergio and his friends, all Mexican citizens, were playing a game near the border that involved running from the Mexican side of the border, touching the border barbed-wire fence (which is within U.S. territory), then running back across the border into Mexico. At one point, Agent Mesa detained one of the friends, and Sergio returned to the Mexican side and watched the agent and his friend. Mesa, still on the U.S. side of the fence, then pointed his gun toward Sergio and fired twice, fatally injuring him.

His parents sued Mesa, alleging that the agent had violated their son’s Fourth and Fifth Amendment rights. In a 1971 case called Bivens, the Supreme Court held that even when Congress has not created a right to sue, some constitutional violations are so severe that a right to sue for damages can nevertheless be implied. Such a remedy is an important deterrent to unconstitutional actions by government officials, especially when (as here) no other legal remedy is available. After a labyrinthine journey through the courts, the case is now at the Supreme Court (for a second time) on the question of whether Sergio’s parents have an implied right to sue Mesa under Bivens.

Oral arguments are scheduled for November 12.

Abortion Rights

Laws designed to close abortion clinics

June Medical v. Gee

June Medical v. Gee (laws designed to close abortion clinics): This is a challenge to a Louisiana TRAP law (“targeted regulation of abortion providers”) essentially identical to one in Texas struck down as unconstitutional in 2016’s Whole Woman’s Health v. Hellerstedt, where Justice Kennedy provided the fifth vote.

The district court in Louisiana held a six-day trial and issued a 116-page decision entering a permanent injunction against the law, based on extensive factual findings. The court specifically found that as a result of the law, there would be only “one provider and one clinic” in the entire state that could perform abortions, as opposed to six doctors and five clinics before the law was passed. The court concluded that 70 percent of Louisiana women choosing to seek abortion care would be unable to obtain one in the state. The court also found that the hospital privileges requirement would produce no medical benefit, and would thus not further the state’s interest in women’s health, but instead would increase delays and health risks to Louisiana women, as well as substantially burdening their right to reproductive choice.

But a divided Fifth Circuit panel reversed the district court’s decision, by jettisoning the district court’s factual findings and making up new ones. Reagan appointee Patrick Higginbotham dissented and sharply criticized the majority. The full circuit voted against en banc reconsideration of the panel ruling, with all four of the participating Trump judges (Don Willett, James Ho, Kurt Engelhardt, and Andrew Oldham) tipping the balance.

The Supreme Court imposed a stay on the rogue decision, but the vote was only 5-4, with Chief Justice Roberts (who had dissented in Hellerstedt) joining the Court’s four moderates, and the two Trump justices joining Thomas and Alito. Justice Kavanaugh wrote a dissent arguing the law should be allowed to go into effect. Like the Fifth Circuit ruling, Kavanaugh’s dissent relied on changing the facts. His action came as no surprise to the anti-choice activists who supported his nomination or to the pro-choice advocates who opposed him. There is serious concern that the substitution of Kavanaugh for Kennedy may make all the difference in this case and could lead to a ruling seriously harming women’s reproductive rights.

Oral arguments have not yet been scheduled.

Church-State Separation and Freedom of Religious Exercise

Government payments to religious schools

Espinoza v. Montana Department of Revenue

Conservatives are hoping that Justice Kennedy’s replacement by Justice Kavanaugh will create a Supreme Court majority willing to vastly expand 2017’s Trinity Lutheran case and use it to decimate federal and state constitutional restrictions on government funding of religion. Under challenge is a Montana program that gives a 100 percent tax credit for donations to an entity that gives scholarships for qualifying private schools. Mindful of the state constitution’s strict ban on state financing of sectarian schools, which is more stringent than the federal Establishment Clause, religious schools are not considered “qualifying schools” under the program. Kendra Espinoza and other Montana parents who wanted to use the state program to pay for sectarian private schooling sued and, with the backing of the Religious Right, have framed the policy not as a protection of church-state separation, but of discriminatory mistreatment of religion. They lost in the Montana Supreme Court but the U.S. Supreme Court agreed to review the case.

The issues involved in the current case spring from Trinity Lutheran, which involved Missouri’s competitive grant program for organizations to improve their playgrounds. Because the state’s constitution prohibits direct funding of houses of worship, the program excluded Trinity Lutheran Church from eligibility. The Supreme Court held that this violated the First Amendment’s Free Exercise Clause by denying Trinity Lutheran an otherwise available public benefit because of its religious status. The opinion included an unusual footnote, explicitly limiting its analysis to “express discrimination based on religious identity with respect to playground resurfacing.” Espinoza hopes to delete that limitation and reframe principled efforts to avoid state funding of religious institutions as unconstitutional anti-religious discrimination.

Although Kavanaugh was not on the court in 2017, he has written about this issue since his elevation. On March 4, 2019, he wrote a concurrence to the Court’s decision to deny certiorari in a New Jersey case where the state supreme court had upheld a law denying state historic preservation funds to preserve religious buildings like churches. Those resources would have been used to fund religious activities in violation of the state constitution. Joined by Justices Alito and Gorsuch, Kavanaugh framed it as the state discriminating against religion as a penalty in violation of the federal Free Exercise and Equal Protection Clauses, with no mention of the Establishment Clause issues that motivate such spending restrictions. (They voted to deny certiorari because they said the facts were not clear, and because there had not yet been time since Trinity Lutheran for “robust” circuit case law interpreting it. Certiorari in Espinoza was granted less than four months later.)

There has always been a balance required when issues implicate both Establishment and Free Exercise protections. However, the Right’s reframing of church-state separation diminishes the Establishment Clause interests to tip the scales dramatically toward funneling taxpayer money to religious organizations, even when states decide to the contrary.

Oral arguments have not yet been scheduled. Our nonpartisan affiliate, PFAW Foundation, is working with others on an amicus brief in the case.

Racial Discrimination in Business Contracts

Holding companies accountable when race affects a decision not to do business with someone, but isn’t the only reason

Comcast v. NAAAOM

A company owned by an African American businessman sought a deal with Comcast to carry his network’s cable channels, but no agreement was ever reached. Comcast claims it declined a deal strictly for legitimate business reasons. But the National Association of African American-Owned Media believed that racism at least played a role, and they sued Comcast for damages under a law called Section 1981, which was adopted shortly after the Civil War.

The question is whether, in order to go to trial for violating Section 1981, it is enough for the plaintiff to argue that race played a role, even if it wasn’t the only factor, or whether it must make a case that Comcast would have reached an agreement with it but for the consideration of race. Comcast argues that judges should require the latter approach: a “but-for” standard that would make it harder to hold companies accountable for race-based decisions not to do business with someone. In recent cases, the Roberts Court has found opportunities to impose a “but-for” standard on certain aspects of modern civil rights legislation, adding that this is the standard courts should presume unless Congress says otherwise.

Section 1981 is worded very differently from modern statutes, which prohibit discrimination “because of” race, sex, etc. Section 1981 states that all people “shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens …” According to NAAAOM, if a company considers race at all in refusing to do business with an African American, then that individual has not enjoyed the same right to contract as white citizens. That is enough, it argues, to advance to trial, where Comcast would then have a chance to present its alternative justifications, and NAAAOM would try to persuade the court that those reasons were pretexts.

NAAAOM also cites the broad remedial purpose of Section 1981 to support its interpretation. Congress acted to eradicate the “badges and incidents” of slavery. Yet those badges remain, and NAAAOM argues that it “would be wrong for this Court to walk back from the promises of economic inclusion set forth in section 1981.” It cites sobering data: African Americans make up nearly 13 percent of the United States population but hold less than three percent of the nation’s total wealth; and African American-owned firms account for only 0.4 percent of the gross receipts in the entire U.S. economy. With the goals of Section 1981 still not reached, NAAAOM argues that a “but-for” standard would shut the courthouse door to businesses owned by people of color that are treated differently in contracting because of race.

Oral arguments have not yet been scheduled.

Environmental Protection

EPA coverage of industrial discharges that reach the ocean indirectly

County of Maui, Hawaii v. Hawai’i Wildlife Fund

This case involves a county-owned wastewater treatment plant that discharges three to five million gallons of treated sewage daily into the groundwater beneath the facility. Many of the pollutants find their way to the nearby Pacific Ocean. The Hawai’i Wildlife Fund and several other environmental organizations went to court, arguing that the county was violating the Clean Water Act (CWA).

The CWA prohibits “any addition of any pollutant to navigable waters from any point source” without a permit.” The Hawai’i Wildlife Fund went to court because the county didn’t have a permit. But the county contends that its plant is not a “point source” for the ocean pollution because it is not placing the treated sewage there directly. HWF disagrees as a matter of statutory interpretation, and it also points out that:

[L]imiting the CWA would free polluters to release pollutants onto the ground or into groundwater even when they know—even when they intend—that the pull of gravity or the flow of groundwater will inevitably carry the pollutants to navigable waters.

It argues that Congress did not intend to create “such easy avenues for evasion of the CWA’s terms.” It would not make sense to interpret the statute in a way that made it impossible to accomplish its goals.

As the Constitutional Accountability Center stated in an amicus brief supporting the Hawai’i Wildlife Fund: “The County cannot evade liability by doing indirectly what it is prohibited from doing directly.”

Oral arguments are scheduled for November 6.

Consumer Protection

Unfair debt collection practices

Rotkiske v. Klemm

The Supreme Court will determine whether a victim of illegal debt-collection practices can sue the alleged perpetrator if he doesn’t learn what was done to him until after the relevant law’s statute of limitations runs out.

In an amicus brief, the National Consumer Law Center presents data on the disproportionate impact debt collection has on different parts of the population. People of color are significantly more likely to be contacted by a debt collector, and default judgments are more prevalent among people living in communities of color. The brief also indicates that debt collection actions are particularly prevalent among the elderly.

Congress enacted the Fair Debt Collection Practices Act (FDCPA) in 1977 to protect Americans from extensive abusive, deceptive, and unfair debt collection practices. Third-party debt collectors then and now have constituted a particularly abundant source of such malicious practices. As with many laws establishing civil liability, Congress set a time limit for filing lawsuits. For the FDCPA, the suit must be filed “within one year from the date on which the violation” takes place.

Kevin Rotkiske had accumulated credit card debt, which his bank referred to Paul Klemm’s business for collection. Klemm sued Rotkiske for payment in March 2008 and tried to serve papers on him at an address where he no longer lived. Unable to find him, Klemm withdrew the suit. Klemm refiled the suit in January 2009 and sent someone to serve notice at the same address where Rotkiske didn’t live. Nevertheless, the company certified to the court that it had served him. Rotkiske had no idea any of this had happened, so Klemm was able to get a default judgment from the court for about $1,500. It wasn’t until several years later that Rotkiske found out: He applied for a mortgage, and the bank turned him down on the basis of the outstanding judgment. A few months after the discovery, he sued the company for having filed a fraudulent affidavit of service in order to get a default judgment against him, a violation of the FDCPA.

Citing the language of the statute, Klemm argued that Rotkiske filed too late, because it was more than a year after the alleged violation actually took place. But Rotkiske cites precedents for situations like this involving the “discovery rule.” This is an equitable doctrine endorsed by the Supreme Court that lets judges in fraud cases start the statutory limitations period when the victim learns what happened, not when the legal violation occurs, unless the statute in question makes clear that the doctrine should not be invoked. The Supreme Court explained this aspect of statutes of limitations in a 2010 case called Merck v. Reynolds:

This Court long ago recognized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, the law which was designed to prevent fraud could become the means by which it is made successful and secure [internal quotation marks removed].

While the Fourth and Ninth Circuits have applied the discovery rule to the Fair Debt Collection Practices Act, the Third Circuit in Rotkiske’s case ruled the other way, setting the matter up for resolution this term.

Oral arguments are scheduled for October 16.

Timing for lawsuits over illegal activity in employee retirement plans

Intel v. Sulyma

Congress enacted the Employee Retirement Income Security Act (ERISA) to protect the retirement assets of working people. ERISA establishes numerous requirements for retirement funds and those who make the funds’ investment decisions. This case involves allegations that those in charge of Intel’s retirement plan violated their fiduciary duty to the employees by making overly risky investments that cost plan participants hundreds of millions of dollars. The specific issue is when the statute of limitations for challenging those violations begins.

ERISA requires a lawsuit of this type to be filed within “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” [emphasis added]. The statute at one point referred to the time within which an employee “could reasonably be expected to have obtained knowledge” of the breach or violation, but Congress eliminated this “constructive knowledge” provision in 1987.

Intel argues that its employee Christopher Sulyma had actual knowledge of the alleged wrongdoing because he had received emails with links to documents detailing the investment decisions. Sulyma counters that he has no memory of ever reading the documents (and would not have understood their implications if he had), so he cannot be considered to have had “actual knowledge.” The Ninth Circuit agreed with him that simply receiving access to the information constitutes “constructive knowledge” and not “actual knowledge.” The court ordered the case to go to trial, where it could be determined whether he had the required actual knowledge of the breach. This created a circuit split, because the Sixth Circuit has held that failure to read the relevant documents “will not shield [a person] from having actual knowledge of the documents’ terms.” Intel urges the justices to agree with the Sixth Circuit’s interpretation of “actual knowledge,” or else plan participants could simply say they never read the relevant documents and easily avoid the statute of limitations.

Oral arguments are scheduled for December 4.

Gun Violence

Whether the Court will make it harder to pass reasonable limits on firearms

New York State Rifle and Pistol Association v. New York

The Court is being asked by an NRA affiliate to require heightened judicial scrutiny of laws regulating the types of firearms that are used in gun violence. This would expand on its 2008 Heller decision that for the first time interpreted the Second Amendment to apply outside the context of state militias.

New York Rifle and Pistol Association is challenging a New York City regulation prohibiting gun owners with a particular type of license from transporting their guns outside the city. The Second Circuit upheld the law, and the Supreme Court announced in January that it would hear the appeal.

But there is a significant chance that the case will be dismissed. New York has eliminated the law that the New York Rifle and Pistol Association had filed the lawsuit against. As a result, it already has what it asked for, and there is no longer a true case or controversy that the Court can resolve. With the issue moot, the Court would ordinarily be expected to dismiss the case. However, gun organizations and their allies are urging the justices to hear the case anyway. An amicus brief filed by Democratic Sens. Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand points out the damage the Court would do to its legitimacy were it not to drop the case. The amicus notes the “multimillion-dollar advertising campaign to shape this Court’s composition.”

Petitioners’ effort did not emerge from a vacuum. The lead petitioner’s parent organization, the National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would “break the tie” in Second Amendment cases.

A decision on whether to dismiss the case could come even before the official start of the term on October 7.

Although Heller deemed gun ownership a constitutional right, Justice Scalia’s majority opinion made clear that the decision should not be read to undermine all gun safety regulations: “[The Second Amendment] is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” To the contrary, Scalia noted the existence of “presumptively lawful measures.”

Except for a 2010 case stating that the Second Amendment applies to the states, the Court has not taken any appeals of cases upholding laws enacted to prevent gun violence. Justices Thomas and Alito have complained that the Court treats the right to bear arms as a “second-class” or “disfavored” right, a charge echoed by several of the circuit court judges President Trump has placed on the bench. With Justices Scalia and Kennedy having been replaced by Trump’s two Supreme Court nominees, there may now be a majority eager for an expanded version of the Second Amendment.

Oral arguments are scheduled for December 2.

Cases and Issues in the Pipeline

Many of the Trump administration’s worst abuses are either already being litigated in the courts or likely soon will be. Because of their importance, they are likely to be appealed all the way to the Supreme Court by whichever party loses at the lower level, possibly in time for consideration in the upcoming term. These include:

  • the administration’s massive resistance to traditional congressional oversight;
  • its refusal to cooperate with the House’s impeachment inquiry, a process specifically included in the Constitution as a critical check on presidential abuse;
  • Trump’s routine violations of the Foreign Emoluments Clause;
  • the administration’s inhumane mistreatment of immigrant children and families it has imprisoned in camps; and
  • the seemingly limitless acts of corruption emanating from the White House and infecting much of the executive branch.

In addition, below are several important cases that may be taken up by the Court this term.

Distortion of religious liberty to deprive LGBTQ+ people of their legal rights

Klein v. Oregon Bureau of Labor and Industries

Like Masterpiece Cakeshop, this case involves a bakery that violated state anti-discrimination laws by refusing to provide its cake-making services to a lesbian couple. The owners argue that the law violated their First Amendment rights to free speech and religious exercise. They urge the Court to overrule its 1989 Employment Division v. Smith case, which weakened longstanding constitutional protections for the free exercise of religion and led to the adoption of the Religious Freedom Restoration Act. However, given the current makeup of the Court, overruling Smith would likely not restore the previous understanding of the Free Exercise Clause, but would instead constitutionalize the far Right’s distortion of religious liberty from a shield to a sword. The replacement of Kennedy with Kavanaugh could have an enormous impact on whether a majority considers LGBTQ+ people to have the same rights and dignity as other people.

Blocking access to reproductive health clinics

Price v. City of Chicago

Anti-choice activists are asking the Court to overrule its precedents protecting access to clinics that provide abortion care.

Accountability for the Flint water crisis

City of Flint, Michigan v. Guertin

A sixth circuit panel ruled that Shari Guertin can go to court with her claims against Flint officials concerning lead-poisoned water. The whole court declined to review that decision en banc, over the dissents of Trump judges Amul Thapar, Joan Larsen, John Nalbandian, and Eric Murphy.

Money in politics

Thompson v. Hebdon

In order to counter corruption and its appearance, Alaska enacted a $500 limit on direct contributions to candidates for state office. A subdivision of the Alaska Republican Party, along with three individuals, urges the Court to strike the limit down as violating the First Amendment.

Undermining independent agencies

Collins v. Mnuchin

Trump judge Don Willett was the deciding vote in a radical Fifth Circuit ruling that deemed it unconstitutional to structure an independent agency with a head that can’t be fired by the president without cause. In a case involving Fannie Mae and Freddie Mac, the majority followed the reasoning of a dissent by then-Judge Brett Kavanaugh in which he would have struck down the Consumer Financial Protection Bureau as unconstitutional. All five Trump judges joined an opinion for the full court written by Willett and affirming the panel decision. They effectively rewrote the law Congress had passed to empower the president to fire the head of the Federal Housing Finance Agency for any reason at all. If the Supreme Court takes the case, the ultra-conservatives may use it as a vehicle to reverse nearly a century of precedent recognizing the constitutionality of independent agencies such as the Federal Reserve and the Federal Trade Commission, which Congress established to pursue the public interest despite political pressure from the White House.

Destroying the Affordable Care Act

Texas v. United States

Texas and other conservative states have created a meritless lawsuit to eliminate life-saving protections for millions of people with preexisting conditions and other key protections of the Affordable Care Act. The Trump administration has joined them, urging the court to strike down the entire ACA. The legal argument is so weak that career Justice Department officials refused to sign the brief. Nevertheless, a district judge regarded as antagonistic to the law struck it down in a ruling that was widely condemned. The case is currently being considered by the extremely conservative Fifth Circuit. However it rules, the ultimate outcome will likely be decided by the Supreme Court.

Conclusion

Our democracy is experiencing tremendous stress, with traditional checks and balances under unprecedented attack. This comes on top of assaults on the rights of working people, people of color, LGBTQ+ people, people exercising abortion rights, consumers, and others long targeted by far Right activists, legislators, and narrow-minded elitists on the federal bench.

While federal judges are not elected, we do elect the presidents who nominate them and the senators who decide whether to confirm them. This will be a major issue in the 2020 elections.