Divisive docket to test Supreme Court ahead of 2020

The Supreme Court is poised to rule on a range of controversial political issues in its current term, potentially putting the high court’s broad popularity with the public to the test.

The court’s docket this term will have the justices weighing in on workplace rights for gay and transgender people, the first major Second Amendment case in nearly a decade, new restrictions on abortion and President Trump’s rollback of deportation protections for thousands of undocumented immigrants.

{mosads}On top of the hot-button political issues, a number of Trump’s various legal battles with congressional Democrats and states seem destined to reach the Supreme Court. If they do, the justices will also be faced with constitutional questions about the powers of the president.

The controversial docket comes at a time when the court still enjoys favorable approval ratings from the public, according to recent polling, despite the bitter partisan confirmation battle for Justice Brett Kavanaugh last year and Senate Republicans’ refusal to take up President Obama’s nominee Merrick Garland in the last year of his presidency.

A recent Gallup poll found that a slight majority, 54 percent, of Americans approve of the job the court is doing.

Another survey, from Marquette Law School, shows that 79 percent express confidence in the Supreme Court, including 42 percent saying they have some confidence and 37 percent saying they have a great deal or quite a lot.

And the University of Pennsylvania’s Annenberg Public Policy Center found that 68 percent of Americans have a great deal or fair amount of trust that the court acts in their best interest.

Jeffrey M. Jones, a senior polling editor with Gallup, says that it’s not unusual for the court to enjoy higher approval ratings than other government bodies, since it is usually seen as staying above the political fray.

“Typically, people have more trust in the judicial branch than in the executive and legislative. I think that’s because it’s at least nominally nonpartisan,” Jones told The Hill. “I don’t think people are as familiar either, certainly, with what the court is doing as they are with what the president is doing because the court doesn’t get as much attention.”

But some court watchers say that could change.

Earlier this month, the court heard arguments in cases that will decide whether civil rights laws that protect workers from discrimination on the basis of sex cover gay and transgender employees. And in November, the Trump administration will face off with civil rights advocates, universities and major businesses in a case that will decide the fate of the Deferred Action for Childhood Arrivals (DACA) program.

The court is expected to hand down decisions on those divisive social and political issues in June.

{mosads}Also looming ahead is the 2020 presidential election, with both parties already making control of the federal judiciary a key issue to rally their supporters.

Controversial rulings out of the court this term could turn the institution into a bigger political issue for voters, particularly if the court’s conservative majority holds sway on a number of contentious issues.

Marquette’s polling shows that 53 percent of Americans would oppose a ruling that upholds Trump’s decision to end the DACA program shielding thousands of immigrants from deportation; 60 percent would oppose a decision finding that gay and transgender people aren’t protected by workplace discrimination laws; and 61 percent would oppose the court overturning Roe v. Wade, the 1973 decision that legalized abortion that conservative judicial activists have spent decades mobilizing against.

Some of the justices have been particularly sensitive to accusations the court has become politicized.

“When you live in a polarized political environment, people tend to see everything in those terms,” Chief Justice John Roberts, a George W. Bush appointee, said in a speech last month. “That’s not how we at the court function and the results in our cases do not suggest otherwise.” 

But ahead of this term’s rulings, both sides appear eager to turn the court into a political football in 2020.

Progressive activists warn that the court’s reputation could be damaged if it oversteps with unpopular rulings and energizes progressive voters.

“People on the left are more engaged than ever before in advocacy around the Supreme Court since the Kavanaugh confirmation,” said Nan Aron, the president of the progressive judicial group Alliance for Justice.

“Decisions that the court renders on critical legal protections and rights will serve as an urgent call to action on the part of the left,” Aron added. “Ultimately, we’ll see growing numbers of progressives prioritizing the Supreme Court in the upcoming election.”

But conservatives also have high expectations for the court’s term and its majority. Exit polling from previous elections show that conservative voters are more likely to prioritize a candidate’s views on the Supreme Court than liberal voters.

Republicans and Trump have capitalized on that with their base. In 2016, then-candidate Trump took the unusual step of releasing a shortlist of potential Supreme Court nominees to convince skeptical Republicans of his commitment to nominating conservative justices.

And Senate Majority Leader Mitch McConnell (R-Ky.) has touted the confirmation of Trump’s two Supreme Court nominees and a slew of federal judges as a signature achievement for the GOP Senate.

Conservatives have high hopes the conservative majority will deliver on issues important to the base.

Carrie Severino, chief counsel and policy director for the right-wing Judicial Crisis Network, said that the left’s push for reforms are an attack on the Supreme Court’s independence.

“These are issues of great concern because they are using this rhetoric calling the court political in order to advance their own agenda, which itself is what’s actually political — the agenda of trying to get more liberal justices on the court,” Severino told The Hill.

The challenge to the court in a hotly politicized Washington is evident as Democratic candidates and lawmakers have floated or embraced more radical reforms to the court, such as court-packing or imposing term limits on justices.

Polls also show some support for those views. While the Marquette poll found that only a minority, 43 percent, support packing the court, a surprising 72 percent backed the idea of ending lifetime tenures for Supreme Court justices in favor of fixed terms.

Christopher Kang, counsel for the progressive group Demand Justice, said in an emailed statement to The Hill that Democrats should take heed of those poll numbers and the potential for major Supreme Court decisions this term.

“This explosive term will catapult the court to the center of the 2020 debate,” Kang said. He added that “Democrats can run and win by offering reforms to rebalance Court — but only with bold court reform plans that can actually solve the problem.” 

The pressure on the court is likely to grow.

In August, a group of five Democratic senators, led by Sen. Sheldon Whitehouse (D-R.I.), filed an amicus brief with the Supreme Court blasting its decision to take up a Second Amendment case concerning gun laws in New York and accusing the conservative justices of politicizing the court. The group cited a Quinnipiac poll from May that showed 51 percent of voters think the court needs to be “restructured.”

“The Supreme Court is not well,” the lawmakers wrote. “And the people know it. Perhaps the court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”