The List of Dread: Elections, Guns, Parental Rights vs. Trans Rights, and Immigration -Joyce Vance

 

I used to joyously await the start of a new term of the Supreme Court and the interesting (in a lawyerly way) issues that were about to consume us for the next nine months. New developments to discuss. Cases and analysis to parse. For a federal prosecutor, there was always something interesting happening.

No more. Now, even though its active shadow docket has made the Court an ever-present feature of American life, without summers off, I approach the first Monday with an unsettled feeling. What will the Court do to us this year?

It’s already taken away Roe v. Wade, allowed dark money to pervade our politics, given Trump a pass from prosecution for January 6, and permitted partisan gerrymanders. How much worse can it get? This term, there are some distinctly unpleasant possibilities.

Everyone else is picking their favorites, or at least their top cases, for the term right now. Instead, I have my list of dread. I’m not here to tell you what undecided petitions I’m eagerly awaiting decisions on. I’m here to assess just how much damage—or major advancement of the conservative hetero-orthodoxy, depending on your perspective—the Court will do this term.

And, of course, it wouldn’t be Civil Discourse if I didn’t remind you that this is one of the reasons it’s so critical to do everything we can to advance Democratic Senate candidates wherever we can. Justice Alito is already teasing a resignation at the end of the term. He told CBS Court reporter Jan Crawford he’d thought about it at the end of the last term but decided there was still more work he could do.

Here, then, is:

The List of Dread

Elections: Republican National Committee v. Mi Familia Vota. Scheduled for oral argument on December 8, Mi Familia Vota tees up two connected issues. The first is really quirky. In a case called Arizona v. Inter Tribal Council of Arizona, the Court ruled in 2013 that an Arizona law that required documentary proof of citizenship, like a passport or birth certificate, to register to vote violated the National Voter Registration Act (NVRA or Motor Voter Act) and an existing consent decree. 

The law requires Arizona to “accept and use” the federal form for registration, which permits voters who attest under penalty of perjury that they’re citizens to register without showing the actual documents, which of course, many people don’t have readily available.

Arizona looked for a way to get around that decision and ended up creating a dual-track system for registering in which voters without physical proof of citizenship are “federal-only” voters and can’t vote in state elections. The RNC and Arizona lawmakers are arguing that the state has the ability to dictate conditions that apply to state forms. 

When the case is argued, we’ll be listening for whether there are five Justices who believe that either the National Voter Registration Act (NVRA or “Motor Voter Act”) or an existing federal consent decree prevents Arizona from forcing people to show their documents instead of just opening themselves up to criminal prosecution if they lie, as the current system does, in order to be able to vote in state elections.

If there aren’t, states will be able to come up with any number of restrictions that will keep eligible citizens from registering to vote in critical state elections by virtue of making it difficult for some people (for instance, as with the proof of citizenship requirement, those who can’t afford the documents or are transient, etc.)

As if that’s not enough, there’s also a second issue, involving whether the NVRA prohibits Arizona from implementing a program to systematically remove people it suspects of being noncitizens from voter rolls within the 90-day period in advance of the election, which has not been permitted until now. 

We’ve seen how error-prone the federal government is at identifying noncitizens it believes have registered to vote. If the majority accepts this view, it could become infinitely more difficult for voters to stay registered and be able to cast ballots that will be counted.

That’s why Mi Familia Vota tops the list of dread.

Guns: Viramontes v. Cook County & Grant v. Higgins. We talked about this one in June when the Court declined to take a case called Snopes v. Brown that challenged the constitutionality of a Maryland law that banned semiautomatic rifles, including the AR-15. Justices Thomas, Alito, and Gorsuch wanted to hear the case. Justice Thomas wrote an eight-page dissent from the denial of cert, with which he called the Fourth Circuit’s reasoning that AR–15s are not “arms” protected by the Second Amendment a “surprising conclusion.” 

That’s not the kind of language you use if you intend to continue to ban AR-15s. Justice Kavanaugh did not vote to hear the case; he seemed to want to wait for another one, and he mentioned Viramontes. Now, here we are. When Snopes was rejected, Kavanaugh wrote: “Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment.” 

He concluded, “in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.” All that stands between us and legal AR-15s is whether the other five Justices are willing to stop the madness.

Parental rights versus trans rights: International Partners for Ethical Care, Inc. v. Ferguson is scheduled for oral argument on December 7. This is a case about standing and whether parents whose children are at home with them can sue over what might happen if they run away. Bear with me for a second, although the case is currently just about that threshold issue of whether parents have standing in this situation. If the answer is yes, then the parents will be able to sue to invalidate a Washington state law that lets shelters notify the state Department of Children, Youth, and Families, rather than immediately telling the parents where the child is if that minor child is trying to receive gender-affirming care.

Does the First Amendment protect religious beliefs at the expense of LGBTQ rights: St. Mary Catholic Parish v. Roy. Colorado law permits religious schools to participate in its universal pre-K program, so long as they follow the same rules as everyone else. But Catholic schools are challenging that, arguing that binding them to follow LGBTQ nondiscrimination rules interferes with their free exercise of their religious beliefs. 

They want an exemption, even as they want to be included in the state-run education program. If there are five votes here (and religion has been trumping other rights and especially LGBTQ rights in a series of cases, including a number out of Colorado), constitutional rights will give way to religious beliefs the Court chooses to elevate.

Immigration and whether the Supreme Court will sign off on letting the Trump administration abandon due process: Last month, the Supreme Court decided the Trump administration could continue with “third country” deportations at least until the Court hears oral argument in DHS v. DVD in December. Only the three liberal Justices dissented, and it’s hard to contemplate why the Court would permit deportations to countries like war-torn South Sudan that the U.S. has deemed too unsafe for Americans to travel to if they were going to tell the administration no after the argument.

This case is about whether people can be sent to unsafe countries they have no prior connection to, may not even speak the language in, where they will potentially face torture, violence, and even death without having the opportunity to ask a court to prevent them from being sent to a specific country where they will be in harm’s way. It’s not about whether they can avoid being deported altogether, just about whether the administration can dump them, for instance, in a war zone, without minimal due process—notice and a hearing—first.

The justices’ ruling means that, at least temporarily, the administration can continue sending people to countries like Equatorial Guinea, where U.S. deportees were hooded, bound and beaten by the police, according to a report in The New York Times. In his brief, Solicitor General D. John Sauer wrote that the third-country deportation program is “an essential tool to remove certain aliens, including some of the worst criminal aliens.”

The technical issues at argument will be whether the judge who enjoined the due process-less deportations had jurisdiction and whether the administration’s policy violates the Constitution and international protections against torture.

There is plenty to watch on the Court’s docket this term. We’ll read the briefs, listen to oral argument, and of course, discuss what the opinions mean when they are handed down. We’ll figure out what it means for our lives and our democracy.

That work takes time. Civil Discourse isn’t behind a paywall six days a week because I believe everyone should have access to reliable information about what our government is doing and what the law actually says. Paid subscriptions are what make it possible for me to keep it that way.

So, as we begin another Supreme Court term, if you read Civil Discourse regularly and find this work useful, I hope you’ll become a paid subscriber. If you already are one, thank you. You make it possible for everyone—including people who can’t afford to pay—to be part of this community and have access to the information we’ll need in the months ahead.

We’re in this together,

Joyce Vance