The short-handed Supreme Court on Monday heard arguments in a case that asks whether judges are partisan policy-makers or neutral umpires, taking up a timely question amid a bitterly divisive confirmation fight that could solidify a conservative majority on the bench for decades.
The court opened its new term Monday less than a month after the death of liberal stalwart Justice Ruth Bader Ginsburg and less than a month before the 2020 elections.
It also comes as Senate Republicans race against the electoral clock to confirm President Trump’s third Supreme Court nominee, Judge Amy Coney Barrett, who would give the court a 6-3 conservative tilt.
In a sign of the times, the court’s eight justices heard arguments by telephone due to the coronavirus, which has sickened Trump and hospitalized him for a fourth day.
The virus has also infected at least two GOP members of the Senate Judiciary Committee who attended a White House ceremony for Barrett a little more than a week ago, and their illness now threatens to derail her fast-track confirmation process.
The justices heard arguments Monday over a challenge to a longstanding Delaware rule that mandates a bipartisan political balance on its most important courts.
Delaware law requires that judges be members of either the Democratic or Republican Party. What’s more, neither Democratic nor Republican judges may outnumber the other party by more than a bare majority.
James Adams, a Delaware lawyer who said he wanted to be considered for a judgeship but felt his status as an independent disqualified him, brought a legal challenge. Adams, a supporter of Sen. Bernie Sanders (I-Vt.), argued that Delaware’s political balance rule violates his First Amendment right to free association.
The lower courts agreed with Adams and struck down Delaware’s policy, calling it unconstitutional.
In doing so, the courts rejected the argument from Delaware’s Gov. John Carney (D) that judges are policymakers, a job category where a candidate’s political affiliation may be a valid consideration.
Delaware contends that, while it may seem paradoxical, its political balance rule has actually depoliticized the state judiciary and helped to foster a court system that is now widely seen as exemplary, particularly in the realm of corporate law.
But a lawyer for Adams told the justices Monday that evaluating judges through a partisan lens undermines the concept of an independent judicial branch.
“The [governor’s] arguments are based on the assumption that a judge’s political affiliation is determinative of how that judge will vote in case,” said attorney David Finger, who represents Adams.
“And this court can look to its own history as a refutation of that premise,” he added. “If this court accepts the premise, it’s the end of the idea of an independent judiciary.”
Much of the arguments on Monday concerned technical questions about whether Adams has the legal right to sue. But it also contained moments that seemed to fit squarely within a national debate about politicization of the courts that has gained urgency in recent weeks.
Last term, with Ginsburg as part of a cohesive four-justice liberal bloc, the court delivered some surprises when liberals managed to persuade at least one conservative to cross ideological lines and vote with their side.
On narrow margins, the court struck down a Louisiana abortion restriction, blocked the Trump administration from ending an Obama-era deportation shield for young undocumented immigrants and extended federal anti-discrimination workplace protections to LGBT people.
But the odds of such liberal surprise victories were decimated within an hour of Ginsburg’s Sept. 18 death.
Shortly after a court spokesperson confirmed Ginsburg’s death from cancer, Senate Majority Leader Mitch McConnell (R-Ky.) vowed that he would hold a Senate vote on a replacement, to be named later by Trump.
Senate Republicans now appear to have the votes to push through Barrett’s confirmation despite this being an election-year, a reversal of the GOP’s rationale for blocking former President Obama’s nominee eight months before the 2016 election.
Ginsburg, a reliably liberal vote on the court, is likely to have her seat filled by her ideological opposite. If confirmed, Barrett is seen as likely to lend a vastly more sympathetic audience to legal challenges targeting abortion rights, the scope of federal agencies and the 2010 Affordable Care Act.
The move would push the court’s fulcrum to the right of its current ideological center, Chief Justice John Roberts, whose stewardship of the court is seen by some conservatives with increasing skepticism.
The result could be that relatively stable areas of law — over issues like gun control, abortion and voting rights — are loosed from their legal moorings, giving conservative groups an opportunity to roll back liberal gains and further their own legal agenda.
The timing of Barrett’s confirmation has been complicated by the fact that two Republican members on the Senate Judiciary Committee have tested positive for COVID-19, which Democrats argue should warrant a delay of the hearings on Barrett’s nomination.
Both of the infected GOP senators — Mike Lee of Utah and Thom Tillis of North Carolina — attended a Sept. 26 White House ceremony in Barrett’s honor that has since been linked to a number of coronavirus cases.
At that same ceremony, perhaps anticipating the partisan rancor over her nomination, Barrett sought to allay concerns that her placement on the court would further politicize its decisions.
“Judges are not policymakers,” she said during speech in the Rose Garden, “and they must be resolute in setting aside any policy views they might hold.”
Updated at 2:09 p.m.