The Supreme Court had planned to spend these weeks deciding whether President Trump has “absolute immunity” from congressional and grand jury subpoenas seeking his tax returns and other financial records.
The justices were also set to rule on the inner workings of the nation’s little-understood presidential election system and decide whether a state’s electors may ignore the wishes of the majority of their state’s voters.
These were among the more than two dozen cases from March and April whose oral arguments have been postponed indefinitely due to the coronavirus outbreak.
The pandemic has upended the court’s schedule and its tradition of hearing public arguments through the end of April and issuing rulings on all those cases by the end of June. It could result in putting off this spring’s cases until the fall.
For the Trump administration and its lawyers, that would be good news. While federal judges and U.S. appeals courts in New York and Washington all rejected his immunity claims, the Supreme Court in November put those rulings on hold, pending a final ruling from the justices. If the trio of Trump tax cases are put off until the fall, the ruling will not come until after the president faces reelection in November.
But in a statement last week, the justices were juggling a variety of options. It said the “court will consider rescheduling some cases from the March and April sessions before the end of the term, if circumstances permit in light of public health and safety guidance at that time. The court will consider a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term.”
Advocates of greater openness said the court should hold its public sessions via a remote hookup and allow the sessions to be televised. The group Fix the Court said a poll of more than 1,000 Americans found overwhelming support for that idea. “The American public expects Supreme Court justices to use modern technology to continue doing their jobs, and that includes hearing arguments,” said Gabe Roth, the group’s executive director.
However, the justices could opt for no public arguments at all. They are used to deciding legal questions based on the written briefs alone, and they do it frequently when facing a claimed emergency.
This month offered a pointed example. On Saturday, lawyers for the Republican National Committee filed a 20-page emergency appeal asking the court to block part of a judge’s order that told Wisconsin election officials they should count absentee ballots that arrive by April 13. Thousands of Wisconsin voters would not receive their requested ballots until after election day, which was Tuesday. The state election officials did not object, but the RNC did. Its lawyers said the extra time could lead to fraud. At the court’s request, the Democratic National Committee responded with a 20-page brief in response on Sunday.
On Monday evening, after the Wisconsin high court sided with the state’s Republican Legislature and overruled the state’s Democratic governor, the U.S. Supreme Court issued a 5-4 ruling that gave the RNC what it asked for.
Still, the justices have maintained their practice of holding oral arguments and issuing written opinions for the cases where they granted review. Usually, they have agreed to decide these cases because the law was not clear, and lower court judges were divided. Unlike with the emergency orders, the justices take up the cases for review intending to set a precedent in that area of the law.
For that reason, many lawyers who closely follow the court think the justices are more likely to reschedule the March and April cases to be argued later — either in May, June or in the fall.
“My thought is that the court will not schedule in-person argument unless and until there is an effective treatment or vaccine, or proof that the virus loses all potency in the summer. There is too much risk to the justices to do anything else,” said Irv Gornstein, a Georgetown law professor who is director of its Supreme Court Institute. “Because I don’t see any of those things happening, I think all arguments will be rescheduled for the fall.”
Washington lawyer Kannon Shanmugam, who argues regularly before the court, said he doubted the court would short-circuit the process by relying only on the written briefs. “The court could decide those cases without oral argument, but I’m sure the court would prefer not to do that if it’s at all possible,” he said. “The court views argument as an essential part of its decision-making process.”
He thought it was possible that arguments could be held in the months ahead. “Given that no one is likely to be going on vacation anytime soon, the court could schedule argument in the summer, or even in September,” he said. “But I think the most likely outcome is that most cases will get pushed off until October.”
The weeks ahead could still yield a series of significant rulings on gay rights, gun rights, immigration, religion and abortion. The court has an unusual number of high-profile cases still awaiting a decision this term.
* Does the federal civil rights law protect LGBTQ employees from discrimination in the workplace? The court heard three cases on this question on Oct. 8, the second day of this year’s term. (Bostock vs. Clayton County)
* Did the Trump administration exercise its authority legally when it moved to repeal the Obama-era policy known as Deferred Action for Childhood Arrivals, or DACA? It has provided protection and work permits to nearly 800,000 young immigrants who came to this country as children. An estimated 27,000 of them are working as healthcare providers. The court heard arguments in three combined cases on Nov. 12. (Department of Homeland Security vs. Regents of University of California)
* Did New York City violate the 2nd Amendment and its right to “bear arms” when it prohibited gun owners from carrying their weapons when they traveled across town or left the city? The court heard arguments in the case of New York State Rifle & Pistol Assn. vs. City of New York on Dec. 2, and because the city ordinance had been repealed, many assumed the case would be dismissed as moot. But the long delay suggests some justices are determined to rule on the issue.
* If states provide scholarships or other aid to students in private schools, are they required to also offer aid to religious schools? The court heard the case of Espinoza vs. Montana on Jan. 22 to decide that question.
* Can Louisiana enforce a law that would require all doctors who perform abortions to have admitting privileges at a nearby hospital, even if doing so would shut down all but one of the state’s abortion providers? The case of June Medical Services vs. Russo, which was argued on March 4, has been seen as a test of whether the more conservative court will uphold far stricter regulation of abortion.
The court is expected to issue its next round of decisions on April 20.