FUTURE SUPREME COURT CASES WILL TELL A TALE

The following upcoming Supreme Court cases should be watched to see if the “conservative” majority continues to make partisan or ideologically-driven decisions that reflect judicial activism (i.e., they disregard precedents and established law): (See my previous post on why the “conservative” justices are really radical, right-wing activists.)

• Department of Commerce vs. New York State, where the Court will decide whether to prohibit the addition to the 2020 Census of a question on citizenship status. The Constitution mandates a census to count all people living in the U.S. The Census Bureau itself (which is part of the Department of Commerce) estimates that adding a citizenship question would mean that 5.8% of households with a non-citizen would not respond to the Census, resulting in 6.5 million people not being counted.

  An acknowledged undercount (due to a citizenship question or anything else) would violate the intent of the Constitution. Furthermore, the undercounting of households with a non-citizen, who disproportionately live in states and districts represented by Democrats, will result in billions of dollars of reduced federal financial assistance to those areas due to funding allocations based on population. It might also result in Democratic leaning states losing seats in the U.S. House of Representatives and the loss of Democratic leaning seats in state legislatures.

  A citizenship question has been added to the Census 1) in violation of the law for modifying the Census, 2) over the objections of experienced Census Bureau employees and six former directors of the Bureau under both Democratic and Republican presidents, and 3) based on a rationale that has been lied about by Commerce Secretary Ross and other Trump Administration officials. [1]

  A recently uncovered 2015 report by a Republican redistricting strategist, Thomas Hofeller, concluded that a citizenship question would provide data to facilitate drawing political districts that would benefit Republicans. Hofeller also suggested using the rationale for the question that the Trump Administration has put forward: that the question would help protect minority voters under the Voting Right Act. The Justice Department letter to the Commerce Department requesting the addition of a citizenship question, uses, word-for-word, a paragraph from Hofeller, despite denials from the Justice and the Commerce Departments that they were aware of Hofeller’s work. [2]

  Therefore, if the Court rules that a citizenship question can be included on the Census, the decision will reek of partisanship.

• Rucho vs. Common Cause and Benisek vs. Lamone are cases where the Court will rule on the constitutionality of partisan gerrymandering of congressional districts to benefit Republicans in North Carolina and Democrats in Maryland. [3] Although these two cases reflect gerrymandering by each party, the bulk of and the most extreme partisan gerrymandering that is in place today has been done to benefit Republicans. (See my previous posts on gerrymandering here and here.)

  If the Court refuses to ban extreme partisan gerrymandering, the decision will clearly benefit Republicans and, therefore, appear to be partisan.

• The Court has decided to rule on three cases involving employment discrimination against gay, lesbian, bisexual, or transgendered (LGBT) individuals. Courts, including the Supreme Court, have ruled since the 1980s that the Civil Rights Act of 1964’s prohibition on discrimination based on sex protected LGBT people from discrimination in employment, housing, and public accommodations. The Equal Employment Opportunity Commission, which enforces non-discrimination in the workplace, has interpreted the Civil Rights Act to apply to sexual orientation and gender identity. Protection for LGBT people in federal law is important because 30 states do not have laws protecting them from discrimination. Many in the LGBT community are concerned that the Supreme Court will overturn these precedents in its rulings on these cases. It is even possible that its rulings in these cases could undermine protections for women. [4]

  If the Supreme Court’s rulings in these cases overturn protections for LGBT individuals, the Court’s decisions will be viewed by many as radical, right-wing ideological and partisan decisions by activist justices.

• Although no case is expected to reach the Supreme Court for a while, anti-abortion activists in Alabama and a number of other states clearly intend to engender a Supreme Court case that will give the Court an opportunity to reverse the Roe vs. Wade decision guaranteeing women the right to terminate a pregnancy. Anti-abortion activists are pushing these laws now because they believe the current “conservative” Supreme Court justices will overturn the settled law and precedent that Roe vs. Wade represents and that has been in place for over 45 years.

  A Supreme Court ruling overturning Roe vs. Wade will be viewed by many as a radical, right-wing ideological and partisan decision of judicial activism.

If the Court makes radical, right-wing, partisan, activist decisions in some or all of these cases, Congressional action to reverse them is possible, with the possible exception of the inclusion of a citizenship question on the 2020 Census. Even there, Congress could ameliorate the effects of the inclusion of the question. (See my previous post on reversing the effects of Supreme Court decisions.)

These Supreme Court cases will be closely watched. A series of radical, right-wing, partisan, activist decisions will, unfortunately, continue to undermine the faith of the public that the Supreme Court – and our court system in general – is impartial and non-partisan. They would also undermine a foundational element of our democracy: its system of supposedly independent checks and balances.

[1]      Liptak, A., 4/15/19, “The Supreme Court will soon consider whether the Census will include a citizenship question,” The New York Times

[2]      Wang, H. L., 5/30/19, “GOP redistricting strategist played role in push for Census citizenship question,” National Public Radio (https://www.npr.org/2019/05/30/728232221/gop-redistricting-strategist-played-role-in-push-for-census-citizenship-question)

[3]      Stohr, G., & Robinson, K., 3/26/19, “Supreme Court Justices question suits over partisan gerrymandering,” Bloomberg Law (https://www.bloomberg.com/news/articles/2019-03-26/top-court-justices-question-suits-over-partisan-gerrymandering)

[4]      Arana, G., 5/22/19, “Does the Civil Rights Act protect gay employees? The Court will decide,” The American Prospect (https://prospect.org/article/does-civil-rights-act-protect-gay-employees-court-will-decide)