A woman participates in a march against the confirmation of Supreme Court nominee Brett M. Kavanaugh in September. (Calla Kessler/The Washington Post)
Starting this week and spanning the next few weeks, the Supreme Court will decide more than two dozen cases.
As The Washington Post’s Supreme Court reporter Robert Barnes writes, a sizable number of the cases carry political implications that could affect the 2020 election and beyond. There’s a good chance this will exacerbate public sentiment that the court, a supposedly neutral body, has been irrevocably politicized by the politicians who play a role in filling it.
Here are the political decisions to watch for.
Can the government ask your citizenship on the census? We don’t know yet. This is one of the most consequential cases the court will decide this year. The Trump administration wants to ask on the 2020 Census whether respondents are citizens. Census officials estimate that could lead to more than 6 million people declining to respond, and thus result in undercounting, particularly in Democratic areas.
Lower courts found that the administration broke the law by deciding to add the question, then trying to find a legal rationale to justify it. But the Supreme Court’s conservative justices, who make up the majority, seemed to think in April arguments that the Trump administration has the right to add it.
Can you be tried in state and federal court for the same thing? Yes, the Supreme Court said Monday. Actually, “yes” has been the answer for more than 150 years, writes Barnes. State and federal government each have their own authority, so it’s not like you’re being tried by the same actor in the same court.
The origin of this case is less interesting, for our purposes, than how the ruling could be applied. If President Trump pardoned his former campaign chairman, Paul Manafort, for federal crimes, this ruling affirms that Manafort could be tried in New York for state crimes. And a president’s pardon power doesn’t reach to the states.
Can you consider a person’s partisanship when drawing districts? We don’t know. On Monday, the Supreme Court upheld state legislative districts in Virginia that were redrawn because lawmakers grouped black voters into districts. The Virginia gerrymandering case, said redistricting expert Rick Pildes in an email to The Fix, exemplifies how politics is infiltrating the legal system. Instead of being decided on the merits, redistricting litigation and other cases flip back and forth based on who is in power. Under a Republican administration, Virginia originally defended the districts, but the state now has a Democratic attorney general, who no longer was willing to defend the state. “In our polarized and hyperpartisan world, this is becoming a more common situation,” he said.
But the bottom line is that courts agree that considering voters’ race when drawing districts is a no-no.
Still up for debate is whether maps can be drawn based on partisanship. State lawmakers, who draw most of the electoral maps in the country, have considered how you vote for decades to slice and dice districts that benefit their party. Over the past few years, state courts and lower federal courts have started saying that’s unconstitutional. This term, the Supreme Court heard two cases about partisan gerrymandering in Maryland and North Carolina. What will the justices decide?
How much power can Congress give to the president? A lesser-profile case with a decision coming that could affect Trump is about whether there are constitutional limits on how much power Congress can delegate to the executive branch. The case, Gundy v. United States, asks whether Congress violated its constitutional duties when it let the attorney general interpret a regulation involving sex offenders. But, Pildes says, what the court decides could have “significant implications” for other things Congress has broadly delegated to the president, such as sweeping power to impose tariffs.
Finally, here are two cases the court will decide this time next year that will certainly have political impact, especially since their decisions will be arriving just months before the 2020 election:
Did the Trump administration illegally end DACA? Two federal courts have said the Trump administration wrongly ended a federal program to protect immigrants brought to the country illegally as children. It’s not that Trump doesn’t have the authority to end the Deferred Action for Childhood Arrivals. President Barack Obama issued it as an executive action, so Trump can undo it. But the courts disagreed with how Trump ended it, finding the administration didn’t clearly explain the policy decision behind it. One appeals court said how DACA ended was “arbitrary and capricious.” The end result is that, for now, most people protected by the program can’t be deported as Trump has wanted to do. Could the Supreme Court allow Trump to end DACA in time for his reelection?
Can you be fired from your job for being gay? Right now, yes, according to some interpretation of federal anti-discrimination law. On Monday the Supreme Court decided not to hear a case about a baker refusing to bake a wedding cake for a lesbian couple. But next year, the court has agreed to hear not one but three potentially landmark cases asking whether federal anti-discrimination law includes protections for people based on their sexual orientation or gender identity.
