U.S. Supreme Court kicks off new term

Daily News Article — Posted on October 7, 2020

(by Melissa Quinn, CBS News) Washington — When the Supreme Court kicked off its new term on Monday, it did so against the backdrop of a high-stakes confirmation battle as the Senate considers the nomination of Judge Amy Coney Barrett to succeed the late Justice Ruth Bader Ginsburg on the high court… [Senate Republicans have the votes to confirm Barrett, but Democrats do not want President Trump’s nominee to be confirmed].

Already on the docket for the Supreme Court this term are…disputes involving the Affordable Care Act and special counsel Robert Mueller’s questionable investigation into Russian meddling in the 2016 election.

…The high court has already been asked to weigh in on a number of election-related disputes, as officials in numerous states have rushed to expand vote-by-mail for the November contest and [change] voting restrictions in response to the coronavirus pandemic.

Among the cases awaiting action from the court is a request from Pennsylvania Republicans to halt a decision from the state’s high court allowing mail-in ballots received three days after the election to be counted. South Carolina Republicans also asked the Supreme Court on Thursday to reinstate its witness requirement for absentee ballots.

…The high court will hear oral arguments for its first sitting remotely and by telephone, [and will provide live audio of the arguments for its October sitting following the same format that was used during its May sitting at the end of the 2019-2020 term] when the coronavirus pandemic forced the Supreme Court in March to close its doors to the public indefinitely.

The 10 cases slated to be argued remotely in October were initially scheduled for March and April, but postponed because of the pandemic. It’s unclear whether the Supreme Court will resume in-person arguments in November.

Decisions in the cases before the justices this term are expected by the end of June 2021.

One of the major legal battles to be heard by the Supreme Court this term is Fulton v. City of Philadelphia. The justices will [hear oral arguments] on November 4. At issue in the case is whether Philadelphia violated the First Amendment by excluding a religious foster care agency, Catholic Social Services, from its foster care system because the agency declines to place foster children with same-sex couples.

Catholic Social Services is one of 30 agencies in Philadelphia that provides services for foster parents and children, but in early 2018, the city cut off foster care referrals to the agency after learning it did not work with same-sex couples because of its religious objections to gay marriage.

In response to the freeze by Philadelphia officials, Catholic Social Services and a group of foster parents including Sharonell Fulton filed a lawsuit against the city in May 2018, arguing it was targeted by city officials and the decision to stop foster care referrals was unconstitutional.

But the 3rd U.S. Circuit Court of Appeals sided with the city and found it did not treat Catholic Social Services worse than it would have treated another organization that didn’t work with same-sex couples but had different religious beliefs.

[The Washington Free Beacon reports: “Barrett could join the Court in time to participate in the Fulton case assuming Republicans keep to their confirmation schedule, which was on pace for a final vote in late October. That timeline has been thrown into question after three Republican lawmakers tested positive for COVID-19, while others who tested negative are quarantining due to possible exposure to the virus. Senate Republicans are nonetheless signaling that her confirmation process is on track, though they have no margin for error. Barrett will appear before the Senate Judiciary Committee for several days starting Oct. 12.”]

Published by CBSNews .com. Reprinted here for educational purposes only. May not be reproduced on other websites without permission from CBS.

Background

On the Supreme Court from BensGuide.gpo.gov:

Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.

EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)

A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.

On the Role of Judges:
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ‘em as they see ‘em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)

“The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy. A judge can have his or her own opinions, even strong ones, and still read the law neutrally. Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators.” Sean Rushton, Committee for Justice Executive Director, from the WashingtonPost.com.

“One of the big confusions in the…Senate fight over the confirmation of judicial nominees is that this is an issue about ‘liberal’ judges versus ‘conservative’ judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge’s own philosophy…Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose.” Thomas Sowell, Hoover Institution

NOTE: …It is crucial…to have a president who understands the judiciary’s proper role. As Ronald Reagan once noted, “[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative.” For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning. Rather than scrutinizing judicial nominees based on their perceived political leanings, [every] president should appoint judges who apply the law regardless of their own policy preferences. (from “Misunderstanding the Role of Judges” by Deborah O’Malley)