Good Morning. Today is flag day. It's also a SCOTUS day. Orders will be shared at 9:30 am. Opinions will start to come out at 10 AM.
I'm nervous, to be quite honest. Of particular concern for myself are these 2 (of 21 to be rolled out this week) cases.
We are still waiting on two opinions â€“ perhaps the highest-profile cases of the entire term â€“ from the courtâ€™s November calendar. In Fulton v. City of Philadelphia (argued Nov. 4, 2020), the justices are weighing in on a lawsuit filed by Catholic Social Services, a Pennsylvania organization that works with the city of Philadelphia to certify prospective foster parents. When city officials learned that CSS would not certify same-sex couples because of its religious beliefs, the officials instructed the agency responsible for foster care to cut off referrals to CSS. CSS and two longtime foster parents then went to federal court, where they argued that the cityâ€™s action violates CSSâ€™ religious freedom. After the lower courts refused to order the city to resume referrals to CSS, the challengers went to the Supreme Court, which heard argument in November.
California v. Texas and Texas v. California (argued Nov. 10, 2020) are the latest challenges to the Affordable Care Act â€“ and the second to the ACAâ€™s individual mandate, the provision of the law that requires virtually all Americans to buy health insurance. A divided Supreme Court rejected a challenge to the constitutionality of the mandate in 2012, with Chief Justice John Roberts joining the courtâ€™s four more liberal justices in agreeing that the mandate imposes a tax on the failure to buy health insurance. A group of 18 states with Republican attorneys general and governors (along with two individual plaintiffs) returned to court, where they argue that the mandate is now unconstitutional because Congress reduced the penalty for failing to obtain health insurance from $695 to zero. There are (potentially) three issues before the justices. A threshold question that they must resolve is whether the challengers have a legal right to sue, known as standing. If the justices conclude that at least one of the challengers has standing, then they will move on to decide whether the mandate is constitutional. And if at least five justices agree with the challengers that the mandate is unconstitutional, then the court must determine whether the rest of the ACA can survive, or whether it too must be struck down.
Three justices â€“ Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito â€“ have not yet written opinions for the November calendar. On the other hand, the courtâ€™s November calendar is only expected to yield eight opinions, making it hard to predict whoâ€™s writing what. Conventional wisdom has Roberts taking the ACA case and Alito (who has been the author of several prior important decisions involving religion) writing in Fulton, but we wonâ€™t know for sure until the opinions are released.
I just hope that justice will prevail. Let's get this week rolling.