How Much Do You Trust the Supreme Court?

www.ozy.com Monday, July 06, 2020 There’s always been a certain mystique to the U.S. Supreme Court. It’s just about the last place in Washington without television cameras, a place where the black-robed lifetime appointees decide some of the most urgent questions of our time. In the past few weeks alone, religious education, access to abortion, and immigrant and LGBT rights have been shaped by these six men and three women. In the coming days — as its coronavirus-delayed session extends into July — the court will weigh in on birth control coverage under the Affordable Care Act, and whether President Donald Trump will have to fork over his tax returns. This month will pose bigger questions: Can Trump get one more appointment, and how would his opponent Joe Biden reshape the high court if he wins the presidency? Here’s what you need to know. On the Docket 1. Gotta Have Faith You know how each state has a certain number of votes in the electoral college? Well, those are actual people who meet a month after the presidential election to ratify the result. “Faithless electors” are ones who buck the popular vote in their states to choose someone else (seven did so in 2016, including five who ditched Hillary Clinton). In a [unanimous decision on Monday](, the court did what it could to quash that practice by upholding states’ ability to punish electors who go rogue. “The electors’ constitutional claim has neither text nor history on its side,” Justice Elena Kagan wrote for the majority. 2. Contra-ceptive In the fall, the court will (again) hear arguments about whether the entire Affordable Care Act is constitutional. But it could slice into the law now in Little Sisters of the Poor v. Pennsylvania. The ACA requires health insurance plans to cover birth control at no cost to female patients, with an opt-out process for employers with religious objections to offering such plans. The Trump administration argues that religious employers should be able to avoid paying for birth control without jumping through any hoops or notifying the government. 3. The Taxman These are the biggest of the five cases left for the court to decide in the coming days. Trump broke with tradition in not releasing his tax returns when he ran for president, or while in office. Congressional Democrats and New York prosecutors are both seeking these records (among others) as part of investigations into Trump’s business dealings. In Trump v. Mazars and Trump v. Vance, the court will decide whether the president is immune from these subpoenas. It’s a broad test of executive power as well as a potentially explosive election-year document dump. [8 Summer Must-Haves for Keeping Cool]( This summer is like no other. A lot of our favorite activities have been canceled due to the pandemic, and it looks like most of our 2020 [summer memories]( will be made at home. The one thing COVID-19 can’t stop? The sweltering heat. Since many of us will be homebodies this season, here are some ways to keep cool, calm and collected in your own space. [Shop Here On Ozy]( Know These Names [1. Current Roster]( Here are the current justices, their ages, the presidents who appointed them and when they joined the court. Five were appointed by Republicans and four by Democrats, and their ideologies tend to line up accordingly. - Clarence Thomas, 72 (George H.W. Bush, 1991) - Ruth Bader Ginsburg, 87 (Bill Clinton, 1993) - Stephen Breyer, 81 (Bill Clinton, 1994) - Chief Justice John Roberts, 65 (George W. Bush, 2005) - Samuel Alito, 70 (George W. Bush, 2006) - Sonia Sotomayor, 66 (Barack Obama, 2009) - Elena Kagan, 60 (Barack Obama, 2010) - Neil Gorsuch, 52 (Donald Trump, 2017) - Brett Kavanaugh, 55 (Donald Trump, 2018) 2. Retirement Plans? Retirements are usually announced around the end of the court’s term, and [speculation this year focuses squarely]( on the two oldest conservative justices: Thomas and Alito. The thinking is that if they want to be replaced with a fellow conservative, the train might be leaving the station for at least four years, given Trump’s struggles in reelection polls. It would be a brutal political fight, but Mitch McConnell’s Republican Senate could well serve up a right-leaning replacement by Election Day. 3. Electioneering Such a fight could boost Trump: Many credit the Supreme Court for galvanizing the religious right to his side in 2016. Trump released a list of possible SCOTUS picks that year as McConnell blocked Obama from filling a vacancy (pour one out for Merrick Garland). Both Trump and Biden plan to release their own short lists this year, with Biden vowing to appoint the first Black woman to the court. One problem? There are precious few Black women in the upper ranks of the federal judiciary, meaning [Biden might have to look in unlikely places](. [4. From Mexico to First Street?]( Beyond Black women, a name to watch for possible Biden vacancies: Mariano-Florentino Cuéllar, the Mexico-born California Supreme Court justice. A Swiss Army-knife intellectual, he’s spent his career exploring the intersection of legal arrangements and governing institutions across artificial intelligence, cybersecurity, criminal justice, public health and more. [Read more on OZY]( [5. She’s on Deck]( If Trump gets another appointment, the first name on everyone’s lips will be Amy Coney Barrett. Previously seen as the backup plan to an imperiled Kavanaugh nomination, Barrett is a devout Catholic Midwestern mother of seven who has a more “relaxed” view of court precedents. Hint: Roe v. Wade. Oh, and she’s only 48. [Read more on OZY]( Trend Lines 1. Viral Voting The Supreme Court has been operating remotely during the pandemic, with oral arguments over the phone meaning [justices have been doing less interrupting](. They’ve also been less inclined to jump into expanding absentee balloting amid the coronavirus. In recent days, the court [allowed both Alabama and Texas to continue]( with restrictions on vote-by-mail that advocates say should be relaxed when voting in person risks one’s health. Expect more of these emergency fights ahead of the fall elections. 2. Roberts Rules A slew of recent 5-4 decisions have cemented Roberts in [a role of immense power]( as both the swing vote and the chief justice. A conservative who often confounds the right — [National Review magazine’s Dan McLaughlin slammed]( Roberts’ “lack of courage” in upholding an abortion access precedent that Roberts himself disagrees with, among other recent sins — the chief shapes this court like few others have. [3. Will Asians’ Time Come?]( Back in 2013, [OZY first looked at]( why Asian Americans were primed to finally earn a seat on the high court. It hasn’t happened yet, though Sri Srinivasan lurks on the D.C. Circuit Court of Appeals (the jayvee SCOTUS), and several more left-leaning up-and-comers are of Asian descent. But might a second Trump term give Asians a better shot? He’s already sent rising star Neomi Rao (pictured above) to the D.C. Circuit — setting The Donald up to make high court history. [Read more on OZY]( 4. Criminal Minds While the liberal-conservative split defines most closely contested Supreme Court cases, those lines fracture on issues from unreasonable search and seizure to qualified immunity for police officers, with cases that can pit Trump’s two appointees against each other. As [Damon Root writes in the libertarian magazine Reason](, today’s criminal justice docket is bringing out all sorts of divisions among right-of-center jurists. 5. Expansion Mode The idea of expanding the number of justices on the court — in line with FDR’s “court packing” — gained some currency during the Democratic presidential primaries as a way to overcome conservatives’ advantage there. [Pete Buttigieg floated a plan]( to expand the court to 15 but depoliticize it somewhat, with five justices set for each party plus five chosen unanimously by the other 10. [Other proposed reforms include]( putting term limits on justices. The talk has quieted for now, but a hugely consequential decision or another bloody confirmation fight will raise the issue again. Global Gavel 1. Mexico President Andres Manuel Lopez Obrador (aka AMLO) has stacked his Supreme Court with handpicked nominees, using his control to ram through controversial executive decisions and policy changes. The next test? A suit the country’s antitrust body has brought against the AMLO government over new rules that give the federal administration greater control over renewable energy projects, including those with foreign investments. 2. India The Supreme Court — a historically independent institution, which in the 1970s had even deposed Prime Minister Indira Gandhi — is today increasingly seen as almost blindly accepting Narendra Modi’s positions. It has sat on critical habeas corpus petitions pertaining to Kashmir and a controversial citizenship act for months, effectively allowing those policy changes to play out unchallenged. And earlier this year, one of the judges publicly called Modi a "versatile genius" — the kind of cringeworthy praise high court judges have steered clear of in the past. 3. Britain Prime Minister Boris Johnson has the political opposition, the EU and the courts to wrestle with in trying to push through Brexit. Last year, it was the courts that labeled his decision to suspend Parliament illegal. But it turned out well for him: The decision paved the way for fresh elections that saw Johnson return to power with a larger mandate. 4. Poland The Supreme Court and the right-wing Law and Justice government are locked in a battle after the administration introduced a law that allows for the punishment of judges who criticize the government. The EU has stepped into the fray, demanding that Poland withdraw the law or risk falling afoul of the bloc’s norms for an independent judiciary. 5. Brazil Is it time to abolish the Supreme Court? That’s what pro-Jair Bolsonaro protesters in Brazil are calling for — with the president’s support. [He recently criticized]( the high court’s “abuses,” as it investigates Bolsonaro for corruption as well as the leaders of the protest groups, who want a return to military rule with the court and Congress cast aside. 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