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Supreme Court functions in midst of COVID-19 chaos on first day of new term

Court at the white-hot center of politics as election looms

Chief Justice John G. Roberts Jr. started the Supreme Court’s new term Monday with a brief tribute to Justice Ruth Bader Ginsburg, whose death last month thrust the court into Washington’s central political drama less than a month before the presidential election.

Ahead of two hours of oral arguments, held remotely by telephone because of the COVID-19 pandemic, Roberts went through Ginsburg’s career in law that culminated with 27 years on the high court. He said her “contributions as advocate, jurist and citizen are immeasurable.”

The Supreme Court is, at the moment, down to eight justices and not conducting business in person. But the justices moved right into oral arguments after that — making it the only branch of government that was not grappling with how to do its work because of the coronavirus pandemic.

The Senate postponed hearings and looked to stay away from the Capitol this week because three Republican members are in isolation with the virus and others are quarantining because of exposure. Their absence prompted questions about whether Senate Republicans can move forward with plans to swiftly confirm Trump’s nominee to fill Ginsburg’s seat, Amy Coney Barrett, a federal appeals court judge.

President Donald Trump returned to the White House on Monday evening after spending three days in the hospital with coronavirus, and he spent Monday morning tweeting out in all caps a string of reasons why he thinks voters should reelect him.  Some related to the Supreme Court and a case the justices will hear next month on the 2010 health care law.

“PROTECT PREEXISTING CONDITIONS. VOTE!” Trump tweeted, although his administration and Republican-led states will urge the Supreme Court on Nov. 10 to wipe out the 2010 law and, along with it, requirements that health insurance companies cover people with preexisting conditions.

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Trump also tweeted, “SAVE OUR SECOND AMENDMENT. VOTE!” and “PRO LIFE! VOTE!” in nods to the way he said his Supreme Court nominees would rule on abortion and gun control cases. And he picked up on another theme in some cases at the court: “RELIGIOUS LIBERTY. VOTE!”

The justices, whom some expect to look for ways to avoid partisan controversy this term in order to stay out of the political spotlight as much as possible, focused Monday on arguments on two minor cases, about the partisan makeup of Delaware’s courts and a dispute between Texas and New Mexico about the Pecos River.

But in separate action, two conservative justices underscored how much the ideological direction of the Supreme Court will be at the center of the confirmation fight set to start in one week at the Senate Judiciary Committee — and echoed the religious liberty concerns from Trump’s tweet.

The Supreme Court announced Monday that it would not consider an appeal from Kim Davis, a former county clerk in Kentucky who defied court orders to issue marriage licenses to same-sex couples after the Supreme Court legalized same-sex marriages in the 2015 decision in Obergefell v. Hodges.

Although Justice Clarence Thomas agreed with the decision not to hear Davis’ case because it does not cleanly present legal issues, he wrote to call for the court to revisit that Obergefell decision because it will “continue to have ‘ruinous consequences for religious liberty.’” Justice Samuel A. Alito Jr. joined Thomas’ concurrence.

“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas wrote.

Thomas called Davis “one of the first victims” of the Obergefell decision because she had no statutory protection of her religious beliefs and was sued for violating the constitutional rights of same-sex couples “when she chose to follow her faith.”

“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on constitutional law,” Thomas wrote.

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