Politics has way of finding Supreme Court eager to avoid it
WASHINGTON (AP) - The Supreme Court may prefer to avoid politics, but politics has a way of finding the court.
President Donald Trump wants the court to prevent his taxes from being turned over to New York's chief prosecutor and for his administration to exclude non-nationals from the census. He wants the judges to oppose an order that makes it easier for women to get an abortion pill and curb voting by mail.
And Trump is hoping his third Supreme Court nominee, Judge Amy Coney Barrett, will be installed before election day. That would create a Conservative majority of 6-3 for a court that has had a Conservative 5-4 lead for decades, which liberals could occasionally turn on its head by voting from across the ideological divide.
“It's difficult for the court to evade politics. Of course, every issue has a very political angle, and right now the politicization of the courts is putting their decisions at the center, ”Princeton University historian Julian Zelizer said in an email. “We are at a tipping point, close to entrenching a conservative 6-3 majority, which will have a huge impact on public order. So, at the simplest level, it's hard to ignore their connections to the events of the day. "
The court went back to work this week, hearing arguments over the phone for three days. Chief Justice John Roberts began the session on Monday with a tribute to Judge Ruth Bader Ginsburg, who passed away just over two weeks before the new term began.
Other than that, it was hard to tell that anything had changed. The tone was upbeat as the eight judges took turns interviewing lawyers on cases that did not seem intended to divide the court's conservatives and liberals.
The business-as-usual approach is, as the judges like, part of their mantra that the court is above politics and that the public should not see it the way the other two elected branches of government do. This is particularly true of Chief Justice John Roberts, the head of the court who reprimanded Trump in 2018 for criticizing the president of an "Obama judge".
Despite their best efforts, the judges face a political storm that could peak after election day if asked to rule on the election result.
General election issues have already come to court from four states and more are expected.
The Republican-appointed Conservative majority in the court has typically opposed court amendments near an election. But judges were more likely to accept changes if agreed by a state's elected officials.
In the midst of the pandemic, Democrats have pushed for the deadline for receiving and counting submitted ballots to be extended, for witness requirements to be dropped, and for the rules to be relaxed to see if the signature on a ballot matches what is on the file . For their part, Republicans have made an effort to send ballots to all voters.
Republicans in Pennsylvania want the court to exclude mailed ballots received after election day, or at least ballots that are not clearly identified as being mailed on or before November 3rd. A federal court ordered that ballots be counted if received by November 3. 6, unless there is evidence that they were mailed after election day.
The judges on Monday approved Republicans and blocked a court order that allowed South Carolina voters to send ballots without a witness signing them. The next day, Judge Stephen Breyer turned down an offer from Republicans to end the use of ranked voting in Maine. On Thursday, Justice Elena Kagan rejected a Republican attempt to restrict voting slips to voters in Montana.
These pre-election problems would pale in comparison to a re-run of the Bush v Gore case in 2000, when the campaigns in court over the outcome in one or more states.
At this point there could be a 6-3 conservative majority if Barrett is confirmed. And she, along with two other Trump-appointed judges, Neil Gorsuch and Brett Kavanaugh, would decide whether the president who appointed her would serve another four years. In Bush versus Gore, in which the court's five conservatives prevailed over the four liberals, no judges voted on the political future of the president who appointed them.
Not all cases have an impact on the elections. But also those who are not politically charged.
In the battle over Trump's taxes, judges could decide before election day whether to allow or temporarily block the immediate execution of a subpoena issued by Manhattan District Attorney Cyrus Vance Jr. The court rejected Trump's argument in July that he was effectively immune to the subpoena as president, a decision endorsed by Gorsuch and Kavanaugh.
The 2020 census was also in court earlier. In 2019, Roberts joined Ginsburg and the other Liberals in a 5-4 decision that defeated government efforts to include a citizenship issue in the census for the first time since 1950.
Trump has since ordered the Census Bureau to provide him with a population count that excludes people who are illegally in the country so that their number is not used to split the 435 seats in the House of Representatives between the states and the state electoral college vote for the next 10 years.
A lower court has blocked Trump policies as illegal. The government is appealing and asking for a swift solution in time for the population report that the president has to present to Congress in January.
Regarding abortion issues, the court on Thursday found a way to postpone final action for the time being.
The court had failed to respond to the government's appeal for nearly a month to reinstate a requirement temporarily suspended due to the pandemic by a lower court order requiring women to visit in person to obtain the abortion .
The matter is the first abortion lawsuit in court since Ginsburg's death.
On Thursday, the court said it would not respond to the appeal for the time being, so women could still receive the pill in the mail and instruct the lower court to review their original order.
Judges Samuel Alito and Clarence Thomas disagreed, arguing that “there is no legally valid reason for the court's refusal to rule.
It's unclear whether the long period of inactivity was due to Ginsburg's death, Barrett's nomination, or some other factor.
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