The Supreme Court will reconvene for its new term on October 5.
In the short run, Justice Ruth Bader Ginsburg's death and the nomination of a new justice will not have a major impact on the Court's work unless the new appointee's vote would make a difference. For example, when cases ended in a four-four tie in prior situations like this, the Court normally set the case for re-argument after the new justice joins the Court, so she can cast the deciding vote. Similarly, if the eight justices are one vote short in deciding to grant review in a pending case, the Court would often hold that case until the new justice could cast her vote.
President Donald Trump is expected to announce his nominee to fill the vacancy on the Supreme Court on Saturday.
Already the justices have decided to hear one significant religious liberty case, and they could add several more important cases, including an abortion case from Mississippi. Alliance Defending Freedom will once again be arguing before the Court, probably in early 2021, on behalf of college student Chike Uzuegbunam, who was silenced by his college twice when he tried to share his faith on campus.
Here is what to watch for.
How long will COVID-19 keep Supreme Court oral arguments on the telephone?
The Supreme Court announced September 16 that it will conduct the oral arguments for the cases it hears in October telephonically and not in person in the courtroom.
When COVID-19 shut down the nation in mid-March, the Court postponed oral arguments scheduled for March and April. In May, the Supreme Court justices heard arguments via telephonic conference calls. Chief Justice John Roberts gave each justice three minutes to ask questions of each advocate, and no other justice interrupted during another justice’s question time. This differed significantly from the give-and-take debate of in-person oral arguments, which features significant interruptions and dialogue among the justices.
Several court watchers told ADF to expect these oral arguments to be conducted over the phone through December and even into 2021. The Court may be reluctant to resume in-person oral arguments because some of the justices are in their 70s and 80s. They are likely to hold oral arguments telephonically until the pandemic lifts.
The Supreme Court will hear ADF’s Uzuegbunam case this term.
The Supreme Court has granted review in one ADF case (so far) for this term: Uzuegbunam v. Preczewski.
This case involves a Christian college student, Chike Uzuegbunam, who was peacefully sharing his faith and distributing Christian pamphlets in a public area on his college campus, Georgia Gwinnett College in suburban Atlanta. College officials stopped him from doing so twice based on campus policies limiting freedom of speech.
ADF attorneys filed a First Amendment lawsuit on behalf of Chike and another student who decided he could not freely speak after seeing what happened to Chike. The college first argued that Chike’s speech should receive no constitutional protection. Then the college made some changes to its unconstitutional speech policies and argued it should be able to avoid any penalty for violating these students’ free speech rights. Two courts agreed, dismissing the lawsuit. Essentially, they held that the college officials’ violation of the Constitution didn’t matter. But college officials should not be able to violate their students’ First Amendment rights and then simply change their policies after the fact to avoid the consequences. ADF appealed, and the Supreme Court granted review last July.
The issue before the Court is a technical, but important, one: Can university officials stop a lawsuit and get a free pass by rescinding its unconstitutional policies?
ADF argues that college officials must be held accountable for their actions and cannot evade responsibility by the maneuver they made in this case. When courts don’t step in and hold government officials accountable for trampling someone’s constitutional rights, it enables the government to violate someone else’s rights in the future.
The case will likely be argued in early 2021, but a specific date has not yet been set.
The Supreme Court may grant review in other ADF cases this term.
The Supreme Court has only filled about half of its oral argument docket so far for this term. Several ADF cases await the Supreme Court’s review, so we may see more ADF cases granted and argued later, in 2021.
One in particular to watch is Bruni v. City of Pittsburgh.
Bruni involves a challenge by pro-life sidewalk counselors to Pittsburgh’s 15-foot buffer zone that stops First Amendment activities around an abortion facility, including peaceful counseling and even prayer.
The federal appeals court took the unusual step of reinterpreting the ordinance to allow sidewalk counseling but then upheld the modified ordinance’s prohibition against other types of pro-life expression. ADF is arguing that the lower court lacked the authority to rewrite the ordinance and should have declared it unconstitutional in any event.
In mid-September, the Supreme Court ordered the City of Pittsburgh to file a response in this case. The justices will likely consider whether to hear this case sometime in November.
The justices will hear a major free exercise of religion case in November.
The justices will hear Fulton v. City of Philadelphia on November 4, 2020. Our friends at Becket are representing Philadelphia foster parent Sharonell Fulton and Catholic Social Services before the Supreme Court.
This case could potentially reset and expand the constitutional standard courts use to examine cases under the Free Exercise Clause of the First Amendment. In 1990, the Supreme Court significantly limited the free-exercise protections of religious groups and individuals in a case called Employment Division v. Smith. But ADF and its allies involved in the case have asked the Supreme Court to return to the pre-Smith legal standard that gave more protection to religious liberty.
In Fulton, Catholic Social Services is challenging a rule requiring licensed foster care providers to place children with same-sex couples. The City of Philadelphia had licensed Catholic Social Services and 29 other organizations to find qualified families to take care of foster children, many of whom come from homes where they were suffering abuse or neglect.
Catholic Social Services and the other agencies thoroughly evaluate families to find ones qualified to care for foster youth. Each of the 30 agencies takes a different approach to finding families because of the many differences among foster children. And they frequently specialize in serving specific subgroups of children, like ones who speak only a language other than English, children with special needs, or children who have developmental disabilities. This means that the agencies frequently will refer families to other agencies that can better evaluate their ability to serve foster children. An agency’s home study, involving interviews and research, is the agency’s endorsement of a particular family for foster care.
Catholic Social Services, because of its Catholic beliefs about marriage, cannot certify same-sex couples as foster parents.
Because of these beliefs, the City of Philadelphia has stopped placing children with families approved by Catholic Social Services, despite the fact that the City is desperate to find foster homes for children in need. The lower courts upheld Philadelphia’s new policy, even though no same-sex couple has ever asked to be evaluated by Catholic Social Services. Nor have any same-sex couples been unable to become foster parents.
If the Supreme Court uses this case to overturn Employment Division v. Smith, it would have ramifications for many cases, including Washington floral artist Barronelle Stutzman’s case, Arlene’s Flowers. The justices are holding Arlene’s Flowers for its decision in Fulton v. City of Philadelphia, which should come sometime in spring 2021. If the Supreme Court uses Fulton to expand religious protections under the Free Exercise Clause, it will be a major victory that could positively impact many present and future religious liberty cases, including Arlene’s Flowers.
Will the Supreme Court take an abortion case this term?
Abortion may return to the Supreme Court this term, and a lawsuit challenging a Mississippi statute that limits abortions after 15 weeks gestation may be the case the justices take.
Last term, the Supreme Court struck down Louisiana’s law requiring abortion doctors to have admitting privileges at a local hospital, in June Medical Services v. Russo.
The fragmented nature of the June Medical decision quickly triggered a division among the lower courts about what legal standard to use when deciding whether state regulations on abortion are constitutional. No opinion in June Medical commanded a five-justice majority. Chief Justice Roberts wrote a crucial controlling opinion agreeing with four justices that the Louisiana law should be struck down based on the four-year-old precedent of Whole Woman’s Health v. Hellerstedt. But the Chief Justice agreed with the four dissenting justices that lower courts should not attempt to balance the benefits of a state law regulating abortion against the burdens it allegedly imposes. Pro-choice advocates often use such a balancing test to argue that state abortion laws should be invalidated.
Instead, Chief Justice Roberts and the four dissenting justices in June Medical agreed that state abortion laws that do not impose an “undue burden” on a woman’s right to abortion should be upheld no matter the balancing of benefits and burdens. This standard allows more, pro-life state regulation of abortion, but is at odds with the Hellerstedt decision.
So, after June Medical, which rule should lower courts use to evaluate whether a state law regulating abortion violates the Constitution?
Lower courts have quickly divided on this issue. This August, the U.S. Court of Appeals for the 8th Circuit allowed a number of Arkansas statutes regulating abortion to be enforced, based on the standard in Chief Justice Roberts’ concurring opinion. The U.S. Court of Appeals for the 5th Circuit and a federal district court in Maryland disagreed, striking down abortion laws in other cases by using the balancing test.
Mississippi is asking the Supreme Court to clarify this important question in Dobbs v. Jackson Women’s Health Organization. If the justices decide to hear the case, it is possible that five justices would vote to clarify the “undue burden” standard in a manner that confirms states can regulate abortion before viability. This would be a significant victory for pro-life advocates.
The importance of these cases should encourage us to pray for the justices and their law clerks—that the justices would make wise decisions in these important cases and the others they will consider as the term unfolds.
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