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Big Supreme Court opinions could come amid coronavirus outbreak

LGBT rights, gun rights and immigration all on tap during this term

Tourists take photos on the steps of the U.S. Supreme Court on Thursday, March 12. (Bill Clark/CQ Roll Call)
Tourists take photos on the steps of the U.S. Supreme Court on Thursday, March 12. (Bill Clark/CQ Roll Call) (CQ Roll Call)

The Supreme Court building is closed to the public and press, and the next two weeks of oral arguments might be postponed, but that doesn’t mean the justices have to stop working or releasing opinions.

The justices already heard argument on some of the term’s biggest cases on contentious social, political and governmental power in what is shaping up to be a blockbuster term that indicates how far a second Trump appointee will move the court in a conservative direction.

So far, the court has issued 11 opinions in cases where the justices heard oral arguments — and it’s possible the justices could release more without the need to take the bench to do so.

If the justices don’t issue any more opinions in March, the court would be at its slowest pace at that point in the term since at least 2000, said Adam Feldman, a Supreme Court scholar who runs Empirical SCOTUS, which analyzes data for insights into the justices.

[Could coronavirus change whether the Supreme Court streams proceedings?]

The previous lowest number of opinions issued through March is 17 in 2017, and 20 in 2016, Feldman said. While the court usually saves major decisions for the end of the term at the end of June, the coronavirus outbreak has shaken up the court’s typically fixed schedule.

“It’s such a guarded institution we don’t get an inside look at what’s going on with their conversations with each other,” Feldman said. There’s also no clear indication how social distancing or the postponed arguments will affect that process as well, he said.

A decision might be close to ready, but all the justices have to sign off. Each opinion requires discussions between justices and their clerks, as well as communication between justices, that help shape opinions and language, Feldman said.

Some big cases were argued months ago, so decisions in those cases could be coming sooner than others that were argued more recently. While every case is different, the typical time between oral argument and decision in 5-4 decisions in the 2000 to 2018 terms was 110 days, or under four months, Feldman said.

Here are a few of the decisions for which the country has been waiting the longest from the court, which has a 5-4 conservative tilt, that could play into this year’s presidential election.

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LGBT rights

In the first week of the term in October, the justices heard arguments on a trio of cases about whether a 55-year-old federal workplace anti-discrimination law covers gay, lesbian and transgender workers.

Title VII of the Civil Rights Act of 1964 prohibits private companies from discriminating against employees on the basis of “sex,” seen at the time as a historic step for women’s rights. But the justices will decide whether that word, sex, means the law also gives those protections to LGBT individuals beyond Congress’ apparent intent at the time.

The cases mark the first time the Supreme Court will decide an LGBT rights case since the retirement of Justice Anthony M. Kennedy, who wrote a series of opinions such as the legalization of same-sex marriage in 2015 that helped usher in a new era of civil rights.

While the justices divided along expected ideological lines in a way that made it unclear how the court would rule, questions from Justice Neil M. Gorsuch in the transgender portion of arguments hinted that he might provide a decisive fifth vote to extend the protections to LGBT individuals.

Gorsuch said the question was “really close,” but he also said such a change might best come from Congress because of the “massive social upheaval” that might result from the Supreme Court expanding the law.

Democratic lawmakers, who this year advanced legislation to ensure LGBT workplace protections under Title VII no matter how the court rules, told the justices in a brief that “sex” already covers LGBT workers. Republican lawmakers filed a brief in the case to argue that it doesn’t.

Immigration

Four months ago, in November, the justices heard arguments about the Trump administration’s decision to end an Obama-era program that gives nearly 700,000 so-called Dreamers the ability to work in the United States and avoid deportation.

The divided court appeared reluctant to undo the move, which could reshape the nearly two-decades-old push in Congress for more permanent protections for immigrants who arrived in the United States as children.

Attorneys for challengers told the justices that the Department of Homeland Security has the authority to end the discretionary program but did not adequately explain why the administration chose to do so.

The Trump administration had determined that the Obama-era policy was unlawful and unconstitutional and revoked it in September 2017, although no court had ruled so. The department later expanded on those reasons in a memo filed in one of the three lawsuits the Supreme Court is reviewing.

Solicitor General Noel Francisco, defending the decision for the Trump administration, told the justices that the memo includes reasoning “regardless” of the legality of the Deferred Action for Childhood Arrivals program, known as DACA, put into place in 2012.

Gun rights

Three months ago, in December, the justices heard argument in a challenge to a strict New York City gun law that has since been repealed, the first case about Second Amendment rights at the high court in almost a decade.

Most of the justices at the argument didn’t appear inclined to jump back into the social debate about gun laws, but the court could issue a decision that addresses the extent to which Congress or state lawmakers can pass laws that restrict firearms since 5-4 rulings in 2008 and 2010 that found an individual right to possess a firearm at home for self-defense.

The New York law restricted transporting firearms from the home to shooting ranges or second homes that are outside the city, which made it a first test of how far the justices might extend gun rights outside the home.

But the justices questioned whether they should decide whether the repealed and unenforceable law would violate Second Amendment rights.

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Editor’s Note: Never mind the Ides of March, beware all of March