By Mark Wolf
Phoenix—Blazing-button social issues of abortion, immigration, guns and sexual identity are all on the U.S. Supreme Court’s docket this term and, says NCSL’s Supreme Court expert Lisa Soronen, it’s no coincidence they all came up at the same time.
“Most of them were ready to be heard last year but Chief Justice John Roberts presumably held them back to protect Justice Brett Kavanaugh from having to decide hot-button cases in his first term on the court,” said Soronen during her Supreme Court Roundup session at the NCSL Capitol Forum.
“The big question about these four is, ‘Will the decisions affect the election?’ We don’t have undecided voters anymore, but we do have a great deal of potential voters who don’t actually vote. Are these cases that are likely to keep a Democrat or Republican in Wisconsin or Michigan on the couch or off the couch on Election Day?”
The Deferred Action for Childhood Arrivals (DACA) program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.
The Department of Homeland Security said DACA was illegal and rescinded the program, setting off a legal fight that wound up at the Supreme Court.
“The Administrative Procedures Act says the federal government can’t take arbitrary and capricious actions. That’s the argument in this case,’’ said Soronen, executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog. “President Trump comes back with two reasons: It’s a discretionary decision, second it’s illegal. The law says that in some cases, people can be admitted to the U.S. even though it wouldn’t be lawful. The administration says DACA blows that exception so wide open that it’s just too broad.”
During oral argument, Soronen said, “it was hard to see a fifth vote that DACA was legal” and it will likely go down 5-4.
Guns, Guns and More Guns
After being asked to consider a firearms case 88 times since 1988, the court took this case from New York.
“I think they wanted to judge Americans’ reactions to mass shootings and I also think Roberts and former Justice Anthony Kennedy, in particular, didn’t want to go there,” said Soronen. “Then they got Kavanaugh and they took it."
New York City’s “premises” license allowed a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee was only allowed to take his or her gun to a shooting range located in the city. Challengers want to bring their handgun to their second home and to target practice outside the city.
The case was argued largely over the issue of “mootness” since, as of July 2019, New York City and state now allows premises licensees to transport handguns through the city to take them to shooting ranges or second homes.
“The gun owners want more (than the case being declared moot),” said Soronen, including: the challengers admit they violated their license; they want assurance in a judicial decree they will still be able to get a license; and being allowed to take a rest stop while transporting their guns out of the city.
“The liberals couldn’t volunteer quickly enough to moot the case. Kavanaugh was dead silent (during argument). Roberts is probably the key vote. He asked a number of questions that showed he was open (to mootness). I do think there’s a chance for mootness.”
Sexual Orientation/Transgender Cases
The question the court must decide is whether Title VII protections against discrimination “because of sex” should include sexual orientation and gender identity.
“Until 2017, every appeals court has said sexual identity is not included,” said Soronen. “The proponents say orientation and gender identity are just a subset of sex. Gorsuch said this is a really close case textually. Before 1964, same-sex acts were criminal and indicative of mental illness.
“What the justices didn’t seem to understand is that a transgender person lives with the gender they identify with and sees themselves as that gender and expects the world to accept them on those terms.
“There was ton of focus in oral argument on bathrooms. Gorsuch said, ‘Wouldn’t there be a lot of upheaval if people were using different bathrooms than they historically had?’ Gorsuch is clearly torn about this.”
Soronen said the smart money is that the court is unlikely to extend the protections.
The question is whether a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with Supreme Court precedent.
“About 13 states have a similar law,” said Soronen. “Does this sound familiar? A couple of years ago when Justice Kennedy was still on the court, it struck down (5-4) an identical law out of Texas. The court said it was OK for states to regulate abortion based on safety but can’t do that if it places an undue burden on women. In Texas, half the abortion clinics would have closed.”
The 5th Circuit upheld the Louisiana law, reasoning that all the doctors except one could have gotten admittance privileges if they had tried a little harder. She said most observers believe Roberts will join his conservative colleagues in ruling the Louisiana law is constitutional.
“This is a case where the court could take the opportunity to overthrow Roe vs. Wade. I don’t think that’s going to happen and don’t think anything thinks that’s going to happen at this point, but it could. It will be interesting to see how the American public is going to respond to this.
“On one hand, these are huge important issues, topics, on the other hand, there is something narrow about them. The abortion case has already been decided, but the facts are kind of different. DACA is not really an immigration case it’s an administrative procedure case. The sex discrimination case is nowhere near the level of the same-sex marriage case but I think that at this point in our history it may not matter that it’s not the most important issue on that topic, it’s the fact that it’s any case at all in this hot-button space. It’s divisive and will draw attention and scrutiny to the United States Supreme Court.”
Mark Wolf is editor of the NCSL Blog.