The Supreme Court releases opinions Thursday morning, kicking off the home stretch of its term. And most of the potential blockbuster rulings that remain to be decided between then and Independence Day weekend involve issues that inextricably intertwine law and politics. Here’s a little breakdown from that vantage point to understand what is coming in the weeks ahead.
Presidential power
Will the court further expand it, and by how much? A trio of cases directly call into question just how much authority President Trump has. The decisions could expand not only the unitary executive theory, which stands for the notion that a president has sole control of the executive branch, but also the court’s own power. In the process, by undermining the legislature, the government’s most representative body, decisions in favor of Trump would not only weaken lawmakers’ powers, but the American people’s as well.
One of those cases, and the one least likely to do damage to our already faltering democracy because Trump will but certainly certainly lose, is the birthright citizenship case Trump v. Barbara. This one challenges the constitutionality of Trump’s executive order seeking to deny birthright citizenship to the children of some immigrants. If oral arguments in that case serve as an accurate prediction, the court has no appetite to declare the president can, by executive fiat, change the meaning of the Constitution’s citizenship clause. That is good news, because if the court were to rule in Trump’s favor, the damage that allowing the president to rewrite the Constitution would do to our nation would make the decimation of the Voting Rights Act look like child’s play.
The case serves as a reminder of the true meaning of why we have birthright citizenship at all, which is particularly crucial at a time where race and national origin have been politically weaponized in a way that has caused incalculable pain and injustice. I think a lot about that, and if you do, too, check out an important conversation I had at the beginning of this legal battle with Manjusha Kulkarni, cofounder of Stop AAPI Hate.
I’m also pretty confident that the court will rule against the president in Trump v. Cook, a challenge by Federal Reserve’s Board of Governors member Lisa Cook to Trump’s attempt to fire her. Trump argued his decision to remove her from the board was due to claims that Cook committed mortgage fraud — claims Cook denies and for which she has never been charged.
She argues that Trump really wants to purge the Fed of all but loyalists who wish to do his bidding rather than act independently to protect the American economy. Trump’s ongoing beef with Fed Chair Jerome Powell is strong evidence of Cook’s argument. Also, the Federal Reserve Act expressly created 14-year staggered terms for Fed governors to keep presidents from stacking the deck — which is exactly what Trump seems to be doing.
Members of the court’s majority, including Justices Brett Kavanaugh and Amy Coney Barrett, have indicated the need to protect the independence of those in charge of the US central bank. So this case is likely another loser for him.
Contrast that with Trump v. Slaughter, a similar case testing Trump’s ability to fire Rebecca Slaughter from the Federal Trade Commission. Federal law requires a president to show cause to fire trade commissioners, as that agency was also designed by Trump to act independently. But Trump cited no cause when he fired Slaughter by email, noting only that her continued presence on the commission would be “inconsistent with [the] Administration’s priorities.”
A big sign that this will be a win for Trump is the fact that the Supreme Court, in its shadow docket, allowed Trump to fire Slaughter while the case proceeded.
One out of three is still pretty bad: Expanding the president’s power to fire agency heads at will (or worse, for by political design) continues the track the court set into motion nearly two years ago with the landmark decision insulating him from criminal liability for nearly anything he does on the job. And with that, the court’s majority empowers the president, and themselves, to the people’s peril.
The worst sports matches ever
The court will also issue a pair of rulings involving the ability of trans girls to play sports: Little v. Hecox and West Virginia v. B.P.J. Little considers whether laws banning trans girls from playing sports violate the equal protection clause of the 14th Amendment, and B.P.J. asks whether such rules violate Title IX of the Education Amendments of 1972.
Legally, I’ll keep it short. Based on oral arguments and this court majority’s appetite for rolling back LGBTQ protections and bolstering litigants who challenge the civil rights of others in favor of their own conservative religious views, these rulings won’t go well for the trans athletes.
Politically, I’ll put it even more bluntly: The only reason for these court challenges is to further efforts by Republicans and religious conservatives to villainize LGBTQ folks for political gain. No other factors weigh in favor of even devoting the courts’ time to these challenges. The number of trans athletes involved in school or municipal sports is, as a percentage of overall players, infinitesimal. There is no evidence that trans athletes pose any greater risk to cisgender athletes than anyone else. These rulings will serve as a judicial solution to something that is only a problem in the minds of those who can use the decision to amplify their own conservative views and powers to the detriment of one of the nation’s most vulnerable populations. But sadly, the court is likely to go right along with it.
Election meddling
If the gutting of the Voting Rights Act weren’t enough, the court will decide two other cases with stark political implications. One considers whether political parties can coordinate with candidates on campaign spending. In NRSC v. SEC, the court will decide if limits preventing candidates from coordinating expenditures with political parties violates the First Amendment. Legally, I don’t think this case is that big of a deal, as the court already did the lion’s share of damage to campaign spending limits in the 2010 seminal case Citizens United, which unleashed the political spending powers of deep-pocketed corporations and special interests in ways that changed our elections forever.
But politically in the short term, it matters a lot. That’s because Republican Party coffers often run much deeper than those of Democrats. This midterm season is no different, with the GOP holding a $600 million advantage over Democrats. If parties can coordinate directly with candidates, that would be a massive factor as the GOP tries to stave off losses in an election where an historically unpopular president is dragging them down.
But the more problematic case is Watson v. RNC. The Republican National Committee is challenging a Mississippi law that allows mail-in ballots to be counted after Election Day if they are postmarked by then. The RNC alleges that allowing those ballots is preempted by a federal law that sets the Tuesday after the first Monday in November as Election Day for federal offices.
Legally, this case could erode the constitutional principle that election administration is a matter for state officials, not federal courts.
That says nothing of the political stakes. The ruling could impact the midterms in roughly 30 states, including Massachusetts, which allow for post-Election Day ballot counting. Also a ruling in Republicans’ favor would give wind to the baseless argument that mail-in voting leads to fraud, something Trump has been claiming without evidence for the better part of a decade, including as part of his Stop The Steal movement that led to the attempted coup on Jan. 6, 2021. That’s dangerous stuff, and the court may add fuel to that fire.
This is an excerpt from The Gavel, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr. Sign up to get The Gavel in your inbox every Wednesday evening.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.