The president is back after being hospitalised with the virus. But the pandemic may weaken the Republicans’ push to confirm Amy Coney Barrett
PRESIDENT DONALD TRUMP returned to the White House in triumphant mood on the evening of October 5th. With some laboured breathing he gave a salute from the balcony, portraying himself as a man who had defeated covid-19 and was ready to get back to work and—as soon as he’s cleared by doctors—the campaign trail. Yet some things have already changed. For one thing, Mr Trump’s pending Supreme Court appointment of Amy Coney Barrett, a deeply conservative appeals-court judge, does not have quite the air of inevitability it had on September 26th when he presented her in a White House ceremony that became the scene of at least 11 possible coronavirus infections.
Among the stricken are two Republican senators—Mike Lee of Utah and Thom Tillis of North Carolina—who are members of the Senate Judiciary Committee charged with conducting Ms Barrett’s confirmation hearings. Mitch McConnell, the Senate majority leader, pledges to press ahead with Ms Barrett’s hearing on October 12th despite Democrats’ objections (it will be held remotely, as the committee has been operating for months). “We will not stop working for the American people,” Mr McConnell tweeted, just because Democrats “are afraid they may lose a vote.”
But does Mr McConnell have the votes? The Senate needs 51 senators present to conduct business; with just three Republican absences, the 47 Democrats could thwart a quorum by staying home en masse. Two Republicans—Lisa Murkowski of Alaska and Susan Collins of Maine—have said they are disinclined to confirm a nominee before the election. So Mr McConnell can ill afford any absence because of covid-19. On current plans, the Senate Judiciary Committee will send Ms Barrett’s nomination to the full Senate by October 22nd. Voting there must take place in person. “If we have to go in and vote, I’ve already told leadership I’ll go in a moon suit,” said Ron Johnson, a Republican from Wisconsin who has also contracted covid-19.
It is still probable that Ms Barrett will fill the seat of Ruth Bader Ginsburg, the path-breaking liberal justice who died last month. If so, the Supreme Court would see its most important change of personnel since the arch-conservative Clarence Thomas took the seat of Thurgood Marshall, a civil-rights icon, in 1991.
For now, though, the Supreme Court has returned to work short of one justice. It will be grappling with everything from balancing religious rights with LGBT equality to adjudicating the constitutionality of the Affordable Care Act—and weighing in on several election-related lawsuits, some of which have already reached it and others that may well arrive after election day.
Begin with religion. In Fulton v City of Philadelphia, a Catholic foster agency has sued Philadelphia for balking at its policy of placing children with only heterosexual couples. The constitutional guarantee of religious free exercise, the agency claims, should allow it to abide by beliefs regarding homosexualty without losing referrals from the city. “Philadelphia has decided that the Archdiocese of Philadelphia can believe what it likes about marriage,” the agency and foster parents lament, “so long as it speaks and acts to the contrary.”
This raises a familiar conundrum. In 2018 the court asked whether a Christian baker opposed to same-sex marriage must create wedding cakes for gay couples. The majority sided with the baker—but only because some members of Colorado’s civil-rights commission had evinced hostility towards him while enforcing the state’s anti-discrimination law requiring shops to serve all, regardless of sexual orientation. The court did not say whether the government must always bow to religious beliefs that violate other people’s rights. Fulton may not fully untangle this matter, either. But on October 5th Justice Thomas, joined by Justice Samuel Alito, sketched an approach in commenting on a county clerk’s refusal to issue a marriage certificate to same-sex couples. The court’s “cavalier treatment of religion” in its same-sex marriage decision of 2015 has “ruinous consequences for religious liberty”, Justice Thomas wrote, and is a prime candidate for a “fix”.
On November 10th a challenge to the Affordable Care Act (ACA) comes before the justices in another instance of jurisprudential déjà vu. The case, California v Texas, is the third frontal assault on the decade-old ACA, also known as Obamacare. In 2012 Chief Justice John Roberts crossed the aisle to save the ACA from a claim that it is unconstitutional to require most Americans to buy health insurance. Three years later he and Justice Anthony Kennedy joined the four liberal justices to rebuff an effort to scuttle the law based on a semantic glitch. Ms Barrett, who has criticised both rulings, may be joining the court just as the ACA faces its latest test.
California turns on the rather tortured claim that in 2017, when Congress reduced the penalty for not holding health insurance to zero, the “individual mandate”—and by extension the entire law—lost its constitutional justification. The Fifth Circuit Court of Appeals bought this argument, but many conservative legal analysts—even those who supported or orchestrated the earlier challenges—do not. It cannot be lost on the justices that killing Obamacare would strip 23m Americans of health insurance during a once-in-a-century global pandemic.
If it were up to Chief Justice Roberts, the ACA would probably be safe. After twice turning back less far-fetched arguments to trash the law, he is not likely to bite on a third-rate challenge. But in the wake of Ms Ginsburg’s death, this will take more than one crossover vote—whether Ms Barrett climbs into her chair or not. If the court remains at eight members by mid-November and splits 4-4, the ruling of the Fifth Circuit stands and the ACA goes.
After many years in which the Supreme Court swayed left or right according to the whims of Justice Kennedy, the chief justice took firm hold of the court during the term that ended in July. He dissented only twice in a year filled with controversial cases, commanding majorities to address abortion access, immigration, LGBT employment rights and subpoenas for Mr Trump’s financial documents.
With a fifth justice in place further to his right, Mr Roberts may see his hold on the centre weaken. Still, the chief retains influence and seniority and can narrow the scope of conservative victories by assigning himself to write the rulings. He also seems keen to pave a path through the election minefield that defuses fights over voting rules by leaving them up to the states.
In that he may have a partner in Justice Brett Kavanaugh, who voted with the chief 93% of the time last term and who, on October 5th, wrote an opinion reinstating a witness requirement for absentee ballots in South Carolina. A lower court had waived that rule in light of the difficulty of finding witnesses during the pandemic, but a majority of the court found that election administration is the province of states—not judges. Still, Justice Kavanaugh included a morsel of moderation that Justices Alito, Thomas and Neil Gorsuch would not have: ballots already in the mail and arriving by Wednesday would be counted even if they do not have the signature of a witness.
Many important cases lurk among the 30-odd already on the Supreme Court’s docket. Section 2 of the Voting Rights Act, which guards the franchise for racial minorities, is up for analysis, as are a $9bn copyright tiff between Oracle and Google and the Ford Motor Company’s effort to control where injured plaintiffs may sue. The justices will ask if a police officer shooting a suspect who nevertheless escapes counts as a “seizure” requiring reasonable conduct under the Fourth Amendment. They will also consider whether the House of Representatives should get access to grand-jury materials related to Robert Mueller’s report on foreign interference in the 2016 election—a case that may become irrelevant when the 117th Congress shuffles into the Capitol on January 3rd.
Ms Barrett’s arrival at the court could tilt the Supreme Court hard to the right. According to Steve Vladeck, a Supreme Court litigator and law professor at the University of Texas, the court has not seen something akin to the approaching 6-3 majority since “the height of conservative hostility to the New Deal” in 1935. The question is how quickly the court will move. It could proceed cautiously. Or within several years Mr Trump’s refashioned court could decide to end affirmative action, overturn Roe v Wade (the abortion-rights ruling long reviled by the right) and scuttle or limit Obergefell v Hodges, the gay-marriage decision from 2015 that earned a rebuke from two justices on the very first morning of the new term.