- The Washington Times - Sunday, May 23, 2021

The Supreme Court is expected to wrap up its term by the end of June, but the justices still have dozens of cases awaiting rulings, including legal battles over the future of Obamacare, student speech in the digital age, voting rights and religious liberty.

The proceedings also are riddled with speculation about whether Justice Stephen G. Breyer, 82, will announce his retirement amid a pressure campaign by progressives who want President Biden to nominate a younger appointee.

Most court watchers predict the push will backfire and Justice Breyer will stay put for the upcoming term in October, especially because he’s now the most senior justice on the liberal wing of the court following the death of Justice Ruth Bader Ginsburg. In that role, he’s able to assign opinions to the Democratic appointees for them to write, according to David Lat, founder of the Above the Law legal blog.

“That is something he hasn’t had before, so I think he might want to enjoy it,” Mr. Lat said at an event hosted by the Committee for Justice earlier this month.

About two dozen cases are pending with just six weeks left before the Supreme Court’s term ends next month.

“A lot of them still are outstanding. They still have a little over half the cases that haven’t been announced yet,” said Carrie Severino, chief counsel of the Judicial Crisis Network.

Among the most watched cases is one concerning the future of the Affordable Care Act that was argued before the justices in November.

During oral arguments, a sufficient number of justices signaled they could sever the individual mandate requirement from the rest of the 2010 Affordable Care Act, known as Obamacare. That would leave intact its consumer protections, vast expansion of subsidized private insurance and expansion of Medicaid coverage.

Republican lawmakers have tried repeatedly and unsuccessfully to repeal and replace the massive health care overhaul after the justices, led by Chief Justice John G. Roberts Jr., upheld its mandate as a tax in 2012 — a prod to get healthy people to have insurance. But in 2017, the GOP majority in Congress approved tax cuts that put the penalty for not buying health insurance at $0.

A group of conservative states led by Texas now is arguing in court that eliminating the tax penalty made the entire program unconstitutional based on the justices’ 2012 ruling.

The court will decide if zeroing out the tax makes the rest of the law illegal, or if the individual mandate can be removed from the rest of Obamacare. They also are considering if a $0 penalty is enough of an injury to get the dispute heard — and settled — by the courts.

“There might be five votes to say the cost of this tax is zero, the mandate can be overturned,” Ms. Severino said.

There’s also a case out of Arizona concerning some of the state’s election laws. The Democratic Party’s lawsuit originally launched in 2016 aimed to ease Arizona’s restrictions on ballot harvesting and other election conduct.

The district court ruled for Arizona, but on appeal, the U.S. Court of Appeals for the 9th Circuit ruled for the Democrats and said the state had enacted its election laws with discriminatory intent.

Arizona’s legal battle gives the justices a chance to bolster a state’s right to determine how it runs its elections against a push from Democrats to relax voting requirements.

If congressional Democrats pass the For the People Act, which would nationalize federal elections, the Arizona provisions would be struck down because the new federal law would make ballot harvesting legal. The legislation is pending in the Senate, and has been passed by the House.

The justices also are weighing two major educational rights cases.

One concerns a former high school cheerleader who was kicked off the junior varsity team for a foul-mouthed social media post. “F—- school f—- softball f—- cheer f—— everything,” read the Pennsylvania teen’s post over not making the varsity cheer squad.

Her parents sued the school, arguing the post was made off-campus.

The U.S. Court of Appeals for the 3rd Circuit ruled in favor of the cheerleader, saying the school violated her First Amendment rights. But the school district argued before the high court that the post caused a disturbance at school and officials must be able to address speech that causes a substantial disruption.

The other education battle pits the NCAA against college athletes. In oral arguments, the athletic association told the justices that its athletes are amateurs who don’t deserve compensation for their skills.

The case came before the court after the NCAA challenged a ruling by the U.S. Court of Appeals for the 9th Circuit that said college athletes could receive unlimited compensation for their endeavors as long as the benefits are “related to education.”

The problem, according to the NCAA, is that the ruling would allow student athletes to obtain internships that pay them unlimited amounts, creating a loophole that would undermine the NCAA’s control over its venture. The NCAA said this runs afoul of antitrust law, which protects consumers and promotes fair competition.

Both the college athletes’ case and the cheerleader’s dispute are likely not to fall along ideological lines with the justices, according to court watchers.

“We could end up with some interesting, odd alliances,” said Mr. Lat. “I don’t think we are going to see a 6-3 conservative-liberal break in either of these cases.”

The high court also is grappling with how to square religious liberty and LGBTQ rights in a case involving Catholic Social Services and its foster program.

The city of Philadelphia halted the Catholic group from placing foster children in homes because the charity’s policy barred same-sex couples and unmarried people from serving as foster parents.

Catholic Social Services brought the case to the justices after losing in lower courts, arguing it is allowed to reject certain couples from fostering children based on its religious and First Amendment rights.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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