When the Supreme Court returns for its new term on Monday, the crucial question will be whether it serves as a check on President Trump or just a rubber stamp approving his actions. And actually, although the court officially has been in recess since late June, it was still quite active over the summer, hearing a number of matters on its emergency docket. Repeatedly and without exception, the six conservative justices voted to reverse lower court decisions that had initially found Trump’s actions to be unconstitutional.
In the last few months, for example, the Supreme Court has allowed the Trump administration to fire the heads of the Consumer Product Safety Commission and Federal Trade Commission, to eliminate the Department of Education, to terminate grants from the National Institutes of Health and to allow ICE agents’ racial profiling of individuals they choose to stop in L.A. These were all 6-3 rulings on the “shadow docket,” often with no explanation from the court and always with strong dissents from the liberal justices.
The court selected two matters that arose on its emergency docket for full briefing and oral argument later in this term. On Nov. 5, the justices will hear oral arguments in Learning Resources Inc. vs. Trump and Trump vs. V.O.S. Selections as they determine whether Trump had the legal authority to impose tariffs on goods imported from foreign countries. Specifically, the issue before the court is whether the International Emergency Economic Powers Act, which does not mention tariffs, nonetheless gives the president power to impose them.
In December, though an argument date hasn’t been set, the court will hear Trump vs. Slaughter, concerning the power of Congress to limit the president’s authority for firing agency heads. In 1935, in Humphrey’s Executor vs. United States, the Supreme Court unanimously upheld a federal law that prevented the firing of Federal Trade commissioners unless there was good cause for removal. In Trump vs. Slaughter, the Supreme Court has a granted review as to whether to overrule Humphrey’s Executor and also to decide “whether a federal court may prevent a person’s removal from public office.”
Previous rulings in cases on the summer’s shadow docket strongly suggest the conservative justices will overrule the 90-year-old precedent and embrace the idea of a “unitary executive” that has the power to fire anyone who works within the executive branch.
There are a number of other cases pending on the Supreme Court’s docket concerning presidential power that are likely to be heard in the coming term but where review has not yet been granted. In one case, the Trump administration has asked the justices to decide the constitutionality of an executive order greatly restricting birthright citizenship.
The first sentence of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In 1898, in United States vs. Wong Kim Ark, the Supreme Court held that this means everyone born in the U.S. is an American citizen, with the very limited exceptions for babies born to soldiers of an invading army or born to a foreign diplomat. But on Jan. 20, his first day back in office, Trump issued an executive order effectively stating that only individuals born to citizens or to those with green cards are U.S. citizens.
Of course, there are many other matters on the coming term’s docket that do not involve issues of presidential power, including several that raise significant “culture war” issues. In Chiles vs. Salazar, to be argued on Tuesday, the court will consider the constitutionality of a Colorado law that prohibits “conversion therapy” to change one’s sexual orientation or gender identity. The plaintiff is a Christian therapist who says that barring her from engaging in her desired treatment approach with gay, lesbian and transgender patients violates her freedom of speech.
The court has also agreed to hear two cases — Little vs. Hecox and West Virginia vs. B.P.J. — challenging state laws prohibiting transgender girls and women from participating in women’s sports. No date has been set, but the case will likely be argued in December or January.
Undoubtedly one of the most important cases of the Supreme Court’s term will be Louisiana vs. Callais, set to be argued on Oct. 15, which poses the question of whether Section 2 of the Voting Rights Act is unconstitutional. I regard the Voting Rights Act of 1965 as one of the most important laws adopted during my lifetime. It was designed to remedy pervasive racial discrimination in voting, especially in Southern states, and it has been very successful in increasing registration and voting by individuals of color.
Section 2 provides that state and local governments cannot use election systems or practices that discriminate against voters of color. In 1982, Congress amended this law to say that proof of a racially discriminatory impact is sufficient to prove a violation of Section 2; there does not need to be proof of a racially discriminatory intent. This distinction is important because it’s very difficult to prove that decision-makers acted with a discriminatory purpose.
Louisiana vs. Callais, which involves the drawing of congressional districts in the Pelican State, was initially argued in front of the court in March, but was held over for new arguments in this new term. The court asked for briefing and argument on the question of whether Section 2 violates equal protection because it requires that decision-makers consider race to ensure there are no discriminatory effects. If the court strikes down Section 2 on this basis, then every civil rights law that allows liability based on discriminatory impact — including those regarding employment and housing discrimination — will be constitutionally vulnerable.
In all my decades spent closely following Supreme Court decisions, I’ve never before felt one term had the potential to be so momentous in deciding the future of American democracy.
Erwin Chemerinsky, dean of the UC Berkeley Law School, is an Opinion Voices contributing writer.
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