Washington (CNN)The Supreme Court session that began last October and ended on Thursday unfolded against a volatile political background and as individual justices faced their own delicate dilemmas.
Awkward appearance with Trump at White House
Three days after the Senate confirmed Brett Kavanaugh, 50-48, to succeed retired Justice Anthony Kennedy and he took his oath of office, President Donald Trump held a ceremonial swearing-in at the White House and asked that the other justices attend. Some went reluctantly, worried that their presence could be politicized at the televised event. Their concerns might have been justified, as Trump slowly and awkwardly introduced each justice in the audience as if they were all trophy-attendees.
Then the President referred to the sexual assault claim asserted against Kavanaugh by Christine Blasey Ford, from their high school years. Trump apologized to him, declaring it was on behalf of the nation. “You, sir, under historic scrutiny, were proven innocent,” Trump declared. Kavanaugh categorically denied Ford’s claim, which was neither conclusively dismissed nor validated.
Roberts tries to reduce political tensions
Speaking at the University of Minnesota on October 16, Chief Justice John Roberts tried to lower the post-Kavanaugh hearing political tensions. “I will not criticize the political branches,” Roberts began. “We do that often enough in our opinions. But what I would like to do, briefly, is emphasize how the judicial branch is — and how it must be — very different.”
He continued, “Those of us on the court know that the best way to do our job is to work together in a collegial way. I am not talking about mere civility, although that helps. I am instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are in this together.”
Roberts also emphasized, “We do not sit on opposite sides of an aisle, we do not caucus in separate rooms and we do not serve one party or one interest. We serve one nation.”
Ruth Bader Ginsburg fractures ribs, then discovers lung cancer
Justice Ruth Bader Ginsburg fractured three ribs when she fell on November 7 in her office. She had gone home after the fall but, feeling pain through the night, arranged to be taken to the hospital. Although the news was not to be publicly revealed for another six weeks, physicians discovered cancerous nodules in her lungs.
The justice, who has become a social media sensation, nicknamed “Notorious RBG,” prompted a media frenzy with news of the fall — at least the third such incident since 2012. Some people circulated digital “get well” cards and tweeted that they would give their ribs for her.
When the Supreme Court revealed that Ginsburg had surgery at a New York hospital on December 21 to remove the cancerous nodules on her left lung, a spokeswoman said there was no evidence of any remaining disease.
The episode was Ginsburg’s third highly public bout with cancer. In 1999, she had undergone surgery for colorectal cancer, and in 2009 she was treated for early stages of pancreatic cancer. This time, Ginsburg missed several days of oral arguments and did not return to the bench until late February, triggering a round of bizarre conspiracy theories about the true state of her health. She continued with her mantra: “I will do this job as long as I can do it full steam.” She resumed her scheduled travels, including a trip to Sweden in May.
Roberts clashes with Trump
After Trump disparaged a lower court judge who ruled against the administration in an asylum dispute as an “Obama judge,” Roberts on November 21 issued a remarkable statement implicitly criticizing the President and asserting judicial neutrality.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for,” Roberts said in a statement given first to The Associated Press.
Within a few hours, Trump responded on Twitter: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The chief justice did not publicly respond.
Prolonged public fight over the death penalty
The 2018-19 court session was marked by multiple instances of late-night orders from the justices, but the first Thursday in February stood out. By a 5-4 vote, the court allowed an Alabama inmate, Domineque Ray, to be executed without his choice of a religious minister by his side. Ray, a Muslim, had requested an imam, just as Christian prisoners were permitted authorized Christian ministers in the execution chamber. Prison officials disallowed Ray’s choice.
Dissenting from the order allowing the execution, Justice Elena Kagan wrote for the four liberal justices that the majority’s decision was “profoundly wrong.” There was a swift public outcry over the court’s view on religious rights, and justices referred to the dispute, Dunn v. Ray, in subsequent cases, elaborating on and defending their legal rationales.
In a later death penalty dispute, the justices split 5-4 along ideological lines to reject a Missouri inmate’s claim that execution by lethal injection would cause him unconstitutional suffering. He said he has a rare medical condition that includes throat tumors that could rupture during an injection and cause him to suffocate on his own blood before dying.
The case of Bucklew v. Precythe produced heated opinions on both sides. Responding to Justice Neil Gorsuch’s majority opinion, Justice Sonia Sotomayor wrote, “I am especially troubled by the majority’s statement that ‘[l]ast-minute stays should be the extreme exception,’ which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. … There are higher values than ensuring that executions run on time.”
Kavanaugh hearing controversy lingers
Kavanaugh’s October appointment and related ethics complaints spawned public controversy through the annual session. Time magazine named both Kavanaugh and Ford to its list of the “100 Most Influential Americans,” which also generated a raft of public commentary.
On May 6, Kavanaugh made his first major public appearance outside of Washington, in Milwaukee at the 7th Circuit bar and judicial conference. Onstage with his predecessor Justice Kennedy and two lower court judges, Kavanaugh emphasized judicial independence and “allegiance to the Constitution.”
He said he believed in getting out beyond the court’s marble walls and told the audience, “It’s important for judges not be in a bubble.”
Abortion debate in a new context
As state legislatures were adopting a multitude of new abortion regulations, including outright bans on the procedure, Justice Stephen Breyer on May 13 penned an ominous dissenting opinion in a California tax case that referred to a high court abortion-rights milestone. Joined by his fellow liberal justices as the conservative majority reversed a 1979 tax precedent, Breyer wrote, “Today’s decision can only cause one to wonder which cases the Court will overrule next.” He cited an important 1992 case that reinforced Roe v. Wade, the 1973 landmark that made abortion legal nationwide.
In abortion-related action later in May, the justices revived part of an Indiana regulation that had been invalidated by a lower court. The 2016 law required abortion providers to bury or cremate fetal remains and, separately, prohibited women from choosing abortion because of the sex, race or disability of a fetus. In an unsigned opinion, the majority said the fetal-remains requirement could take effect but rejected the state’s appeal related to a woman’s motivation for an abortion.
Earlier in the session, on the same day that the justices allowed the execution of Domineque Ray without an imam,the justices by a 5-4 vote temporarily blocked a Louisiana abortion restriction from taking effect. The law in dispute was similar to a Texas regulation the justices had struck down in 2016. (The merits of the Louisiana law were not decided, and it could be on the court’s agenda for the 2019-20 session.) Roberts cast the decisive vote with the four liberal justices to prevent the Louisiana law from taking effect at this preliminary stage.
2020 census dispute dominates
When the justices heard arguments over the Trump administration’s proposed addition of a citizenship question to the 2020 census on April 23, it appeared the five conservative justices were ready to accept the administration’s grounds for adding the controversial query to the decennial survey.
Commerce Secretary Wilbur Ross had contended that it was added to ensure the protection of minorities’ voting rights, but a lower court judge had declared that reason pretextual and said Ross’ move was “arbitrary and capricious” in violation of the Administrative Procedure Act.
Opponents noted that census analysts had said the question would diminish census participation by recent immigrants and Hispanic citizens.
Then, six weeks after oral arguments, the American Civil Liberties Union contended new evidence revealed that the citizenship query had been devised “by a longtime partisan redistricting strategist who had concluded that adding a citizenship question would facilitate redistricting methods ‘advantageous to Republicans and Non-Hispanic Whites.'” The Justice Department urged the high court to reject the ACLU request and said its “conspiracy theory is implausible on its face.”
In their last ruling of the session, the justices by a 5-4 vote agreed that the voting rights rationale was pretextual. Chief Justice Roberts, joined by the four liberal justices, said the Commerce Department’s explanation for its action was “incongruent with what the record reveals about the agency’s priorities and decisionmaking process.” He said the court would not accept “contrived reasons.” The justices returned the case to the lower court, which could give the Trump administration another chance to try to justify the proposed citizenship question.
No changes among the 9
The annual session ended with a series of major rulings but no retirement announcement. That means the same nine justices would be together for a successive term, going into the 2019-2020 session. The court’s membership has been in flux since February 2016, when Antonin Scalia died suddenly.
Justice Clarence Thomas, a 1991 appointee who is the longest-serving member of this bench, had been the subject of retirement rumors throughout the annual session.
Questioned about any plans to step down, he told an audience at Pepperdine University this spring, “I’m not retiring.” As the court has become increasingly conservative, this senior justice on the right could be at the height of his judicial power.
On the horizon, DACA and other election-year battles
In a final set of orders released on Friday, the justices announced they would hear a challenge to Trump’s attempt to end the Obama administration policy that protects from deportation hundreds of thousands of immigrants who came to the country as children and lack proper documentation. The court had stalled any action on the Trump administration’s appeal in the matter for months.
But now the high-profile dispute on the Deferred Action for Childhood Arrivals program will be part of a 2019-2020 court calendar that already includes contentious cases over gun rights and LGBTQ protections in the workplace. There is a strong chance the justices will be faced with an abortion rights case, too, as they fill in their calendar later this year.
Whatever their docket brings, such major cases will likely be resolved by next June, just as the 2020 presidential election year contest is heating up.
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