June Could Bring Some Big SCOTUS Rulings for 2021

June is the last month of the Supreme Court’s annual term. And, like so many of the rest of us, it likes to save the best for last. The United States Supreme Court generally issues some of its highest-profile rulings each June. During this SCOTUS term, there are a few things that people are likely to be watching:

• Just how conservative (and how reliably conservative) is the newest SCOTUS justice, Amy Coney Barrett? Is she more like an Alito or more like a Roberts?
• Similarly, how conservative (and how reliably conservative) is the second-newest SCOTUS justice, Brett Kavanaugh?
• How drastic of a shift on the court will the three Trump appointees (Gorsuch, Kavanaugh, and Barrett) produce? Since the court is now 6-3 Republican appointees to Democrat appointees, rather than 5-4, how will this look when it comes to actual rulings? The three liberals must gain two conservative defectors in order to form a five-justice majority, rather than needing just one, as was previously the case.
• Will Roberts and some of the other more centrist conservative justices continue to occasionally side with the liberals in an effort to bolster the Court’s image as a nonpartisan institution?

This is your brief (very brief) guide to some of the decisions that you might expect out of SCOTUS this month. Mahanoy Area School District v. B.L.: school speech This case addresses the issue of what a student’s online free speech rights are, vis a vis the student’s school. While it is unfortunately, established precedent that student free speech rights within the school are effectively nonexistent, the question of online speech is somewhat different. Brandi Levy, a Pennsylvania high school student, was a junior varsity cheerleader. When she tried out for varsity and was not selected, she posted an angry, vulgar message on snapchat. The school, in response, suspended her from the junior varsity squad for a full year. What will happen? Court watchers seem skeptical of the school’s draconian punishment, but the question of whether they will issue a narrow ruling or a broader pronouncement on student online speech rights is an open question. California v. Texas: the Obamacare case Conservative lawyers, businesses, and state officials are again asking the court to invalidate the Patient Protection and Affordable Care Act (PPACA or ACA; more colloquially known as “Obamacare”). Their argument goes as follows: in 2012, SCOTUS upheld Obamacare the first time around on the grounds that the penalty for the individual mandate was a tax, and Congress had taxing power. While much speculation of a “switch in time” accompanied this ruling, and while the taxation power grounds was certainly an unexpected avenue of saving Obamacare, that’s been the law for nearly 10 years. The Trump administration then reduced the tax to zero. Conservative attorneys, businesses, and state officials then launched this lawsuit, arguing that because the amount is zero, that the mandate is no longer a tax and the whole law should be thrown out. What will happen? Court watchers seem to be of the consensus that, based on oral argument, the law will again survive to fight (or tax (or not tax?)) another day. Brnovich v. Democratic National Committee: the voting law case In the wake of the 2020 election, Donald Trump blamed widespread voter fraud for his loss. Republican state lawmakers followed suit and passed a slew of “voting security” measures – some that seem sensible and reasonable, and others that don’t. We won’t get into the weeds on which is which. At issue in Brnovich: two such measures from Arizona. One measure requires election officials to discard ballots cast at the wrong voting precinct. The other measure criminalizes ballot harvesting. What is ballot harvesting?

“Ballot harvesting is the gathering and submitting of completed absentee or mail-in voter ballots by third-party individuals, volunteers or workers, rather than submission by voters themselves directly to ballot collection sites” -Wikipedia

What will happen? Court watchers seem to be mostly of the opinion that the Roberts court will uphold these two measures. They are more divided, however, on the question of whether the Roberts court will issue a narrow decision confined to these two particular Arizona measures, or whether SCOTUS may issue a more sweeping decision that would sanction other states’ voting security measures as well. Fulton v. City of Philadelphia: gay rights vs religious freedom When screening foster parents, Philadelphia, like many other cities, relies on third parties to do much of the heavy lifting. This can include socially-oriented businesses, nonprofits, religious organizations, anything. One of those third parties is a Catholic social services agency that objects to gay marriage, and has requested that Philadelphia permit them to decline to place children with same-sex couples. Philadelphia’s position is that all its third party contractors must follow the same set of anti-discrimination rules (which rules prohibit discrimination against same-sex couples). The Catholic agency cites its own religious freedom. What will happen? Court watchers seem to be, based on oral argument, somewhat skewed toward concluding that the Roberts court will side with the Catholic social services agency. While it is unlikely, a broad ruling here could potentially signal the court’s willingness to revisit Obergefell. Conclusion Buckle up, folks. It’s going to be an interesting June. And of course, as always, if you have any questions about how one of these cases might affect your business, please feel free to contact me to discuss your concerns.