Well, that happened.
Just over one month after Justice Ruth Bader Ginsburg’s passing, the Senate voted almost entirely along party lines to confirm Judge Amy Coney Barrett to fill the vacant seat on the Supreme Court.
President Trump has been quite clear that he thinks “it’s very important that we have nine Justices” if we have a contested election, strongly suggesting that Trump expects Barrett to rule in his favor if the election ends up in front of the Court. The incoming justice has been coy about whether she would do so — or even whether she will hear cases involving the 2020 election in the first place.
During her confirmation hearing, Democratic senators repeatedly asked Barrett whether she would commit to recuse from cases related to the 2020 election, due to the appearance of impropriety created by Trump’s comments. Barrett, however, would only offer a vague promise of “fully and faithfully applying the law of recusal” if asked to sit out an election case.
Similarly, while Barrett’s record suggests that she agrees with the Republican Party’s opposition to abortion and Obamacare, much of her scholarship discusses legal theory at a very high level of generality and offers little insight into how she would decide specific cases.
We know that Barrett will be a very conservative justice. But we don’t yet know if she will embrace the radical, even nihilistic approach preferred by someone like Justice Clarence Thomas, who has suggested that federal child labor laws are unconstitutional. We don’t know how much she’ll feel bound by precedent, or whether she’ll be moved by public opinion in cases where conservative “originalists” like herself read the law in ways that are wildly at odds with the public’s preferences.
But these are contentious times, and the Supreme Court has an unusually contentious docket. Almost immediately after joining the Court, Barrett will confront cases that seek to move the law dramatically to the right — often relying on arguments that even many leading conservatives view as ridiculous.
The four cases below will likely help us gain an understanding of whether Barrett is a right-wing outlier, even within an increasingly conservative federal judiciary. The votes she casts in these cases, and the specific legal arguments that she signs onto, may show us just how hostile the Court’s newest member is to democracy, and whether she’s willing to embrace deeply radical legal arguments that undermine progressive policy or punish interest groups aligned with the Democratic Party.
To be sure, Democrats should not necessarily heave a sigh of relief even if Barrett rejects the conservative position in each of these lawsuits. These four cases represent some of the most extreme arguments before the Court, and there are others that could well be revelatory. How Barrett rules on them should offer a window into just how radical the newest justice is likely to be.
Earlier this month, the Supreme Court handed down a brief order in Republican Party of Pennsylvania v. Boockvar, which left in place a Pennsylvania state Supreme Court decision allowing some mail-in ballots that arrive after Election Day to be counted — although it is far from clear that this decision will remain in place now that Barrett is on the Court.
On the surface, Republican Party was a defeat for the GOP, which hoped to have these ballots tossed out. But the Court divided 4-4 in Republican Party, meaning that Barrett could potentially provide the fifth vote to trash these ballots.
The Pennsylvania GOP has already asked the Supreme Court to reconsider this case. So Barrett’s very first action as a justice could be to hand the GOP a victory against voting rights.
One of the GOP’s primary arguments in Republican Party — an argument that three justices seemed to endorse in Bush v. Gore (2000) — is astonishingly radical. The GOP argues that only the state’s Republican-controlled legislature — not the state Supreme Court or some other body — is allowed to determine how Pennsylvania chooses presidential electors. Taken to its logical extreme, the Republican Party’s argument could invalidate state constitutional provisions protecting the right to vote, at least in presidential elections.
It could even allow Republicans to steal the 2020 election for President Trump.
This latter point may seem far-fetched, but bear with me. The Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” members of the Electoral College. In its briefs in Republican Party, the GOP focuses on the word “Legislature,” claiming that only the Pennsylvania state legislature may set the state’s rules for choosing presidential electors, and not the state Supreme Court.
For more than a century, the Supreme Court has understood the word “legislature,” when used in this or similar contexts, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
Similarly, if a state’s constitution protects voting rights and gives the state Supreme Court the power to interpret state law, then the state Supreme Court may make binding decisions regarding how state law or a state constitution should be interpreted during a presidential election.
The Arizona decision was 5-4, however, with the late Justice Ruth Bader Ginsburg writing the majority opinion. While the four dissenting justices in Republican Party did not explain why they voted with the GOP, it’s not unreasonable to think that they voted the way they did because they agree with the GOP’s hyper-literal interpretation of the word “legislature.”
Indeed, two of those four dissenters, Justices Neil Gorsuch and Brett Kavanaugh, signaled that they do agree with the GOP’s approach in an opinion handed down Monday night.
So what would it mean if Justice Barrett provides the fifth vote for this interpretation of the Constitution? For starters, it could mean that state constitutional provisions protecting the right to vote would no longer function in presidential elections. The GOP is quite explicit about this in one of its briefs, claiming that to the extent that the Pennsylvania Constitution conflicts with the GOP’s understanding of the word “Legislature,” “the State Constitution must give way.”
But that’s only the beginning. If the Supreme Court embraces the GOP’s understanding of the word “Legislature,” Republicans could potentially hand down pivotal rulings in battleground states that hand Trump a second term.
Although every state has a law providing that the state’s electoral votes will be decided in a popular election, the Constitution does not actually require such an election. Again, it provides that “each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.”
Under the Republican Party’s theory in the Pennsylvania lawsuit, only the elected representatives in the state’s legislative body are allowed to make this determination. The state courts are cut out of the process because the judicial branch is not the “Legislature.” A similar logic could apply to Pennsylvania’s Democratic governor — again, because the governor is part of the state’s executive branch, not the “Legislature.”
In other words, Republican-controlled legislatures in states like Pennsylvania, Wisconsin, and Michigan could potentially overrule the voters of their state, or stop a close and contested count, and simply assign their states’ electoral votes to Trump. All three states have Democratic governors, but if the Supreme Court reads the word “Legislature” in a hyper-literal way, those governors would not be allowed to veto such legislation.
One of Barrett’s very first actions as a justice could be to weigh in on such a question. To be clear, we don’t know for sure if the Court’s conservatives would take such an argument all the way to that conclusion. But the Court’s 4-4 vote in Republican Party certainly left the door open to such a reading.
On November 10, just one week after Election Day, the Court will hear oral arguments in California v. Texas, the latest effort by Republican lawyers to repeal the Affordable Care Act through litigation. Unlike previous efforts to convince the Supreme Court to take out Obamacare, however, the plaintiffs’ arguments in this lawsuit are widely viewed as laughable even among conservative opponents of Obamacare.
As Yuval Levin, a prominent conservative policy wonk, wrote in the National Review, the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.”
As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay at least $695 in additional taxes. The Supreme Court upheld this requirement, commonly known as the “individual mandate,” as a valid exercise of Congress’s power to levy taxes in National Federation of Individual Business v. Sebelius (2012).
The 2017 tax law signed by President Trump, however, effectively repealed the individual mandate by reducing the amount of the tax for people who do not have insurance to zero dollars. The plaintiffs argue that this zeroed-out mandate — which tells people that they must be insured or else they’ll be forced to pay absolutely nothing — is unconstitutional. Their theory is that the original mandate was upheld as a tax, and a zero dollar tax is no tax at all.
That’s a plausible argument, but hardly an airtight one. It also shouldn’t be more than an academic argument. Who cares if a “mandate” that does nothing at all is constitutional or not?
The answer can be summarized in one word: “severability.” When a court strikes down a provision of law that is part of a broader statute, it often must ask whether the rest of the statute can stand without the invalid provision. Ordinarily, this is a speculative inquiry. The court must try to figure out what law Congress would have enacted if it had known that a single provision of that law would be struck down.
But in Texas, no speculation is necessary. Congress spent the bulk of 2017 debating whether to repeal the Affordable Care Act. Ultimately, it didn’t have the votes to do so. So it repealed just one provision: the individual mandate.
We know, in other words, that Congress would have preferred to leave the rest of the law intact if the zeroed-out mandate were struck down, because Congress left the rest of the law intact!
This conclusion is bolstered by the Supreme Court’s decision in Murphy v. NCAA (2018), which held that courts should preserve as much of the statute as possible if they strike down one provision. “In order for other ... provisions to fall,” Justice Samuel Alito wrote for the Court in Murphy, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
There’s also another glaring problem with the Texas lawsuit. Federal courts are not allowed to hear a lawsuit challenging a particular legal provision unless the plaintiff has been injured in some way by that law — this is a requirement known as “standing.” But no one is injured by a zero dollar tax, so no one should have standing to raise the arguments presented in the Texas case.
Yuval Levin, in other words, is correct. The plaintiffs’ arguments in Texas are ridiculous. If Barrett accepts them, it raises very serious questions about whether the new justice is capable of distinguishing her own conservative political views from the law.
The 14th Amendment to the Constitution provides that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” This is unambiguous text. With a narrow exception for certain Native Americans, all “persons” must be counted in the decennial census, regardless of their immigration status.
And yet, last July, President Trump released a memorandum announcing that “for the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Thus, in violation of the plain text of the Constitution, Trump would not allow the census to count undocumented immigrants for the purpose of determining how much representation each state receives in the House of Representatives.
Notably, about 20 percent of the estimated 10.6 million undocumented immigrants in the United States live in California. If Trump’s unconstitutional plan — which is now before the justices in Trump v. New York — succeeds, then the nation’s largest blue state could lose as many as three House seats. (It’s likely that Texas, a one-time Republican stronghold that is starting to trend toward Democrats, would also be hit hard.)
In his memorandum, Trump tries to get around the Constitution’s explicit text by claiming that undocumented immigrants do not count as “inhabitants” of the state where they live.
“Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census,” Trump claims, “that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”
As Trump correctly notes, there are many people who may be present in the United States — tourists visiting from other nations, foreign diplomats, and businesspeople, for example — who are not counted by the census. “The term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included,” Trump argues, and “determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment.”
At the most general level, Trump is right that someone needs to determine which individuals who may be temporarily present in a state do not count as a resident of that state. But that doesn’t mean that Trump himself gets to make this determination, or that this decision can be made arbitrarily.
As a federal court that rejected Trump’s argument explains, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded” from the census by claiming that they are not “inhabitants” of a state. “To the contrary,” the court continues, while quoting from Merriam-Webster’s dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one that occupies a particular place regularly, routinely, or for a period of time.’”
Many undocumented immigrants reside in a state for “many years or even decades.” They are as much “inhabitants” of those states as any other resident. The three-judge panel — two appointed by George W. Bush, one by Barack Obama — ruled unanimously.
The legal questions in the New York case are, in the words of the lower court that rejected Trump’s arguments, “not particularly close or complicated.”
More than four decades ago, in Abood v. Detroit Board of Education (1977), the Supreme Court held that public sector unions may, under certain circumstances, charge “agency fees” to non-members of the union. These fees are intended to reimburse the union for services it provides to such non-members.
Then, in 2018, the Supreme Court decided Janus v. AFSCME by a 5-4 vote along party lines. Janus overruled Abood, and held that public sector unions may not charge agency fees to non-members.
So, from 1977 until 2018, agency fees charged by public sector unions were legal. And they were legal because the Supreme Court said they were legal.
Nevertheless, anti-union litigators have, since Janus, brought a wave of cases claiming that unions have to pay back many of the agency fees that they charged prior to the Court’s decision in Janus — again, during a period when it was legal for unions to charge such fees. Though these cases have not fared well for the anti-union side in the lower courts, many of them are now before the Supreme Court.
For the time being, at least, the Supreme Court has not announced whether it will hear these cases or not. But the justices have discussed these anti-union cases at multiple conferences — a sign that at least some members of the Court want to take them up.
As one of the federal appeals courts that rejected these lawsuits explained, “the Rule of Law requires that parties abide by, and be able to rely on, what the law is,” not what the law may become in the future. It would be extraordinary if Barrett — or any other justice — voted to sanction unions for actions that, again, the Supreme Court itself held to be legal at the time that the union engaged in those actions.
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