The U.S. Constitution enumerates three co-equal branches of government. The legislative branch makes laws. The executive branch carries out those laws. The judicial branch adjudicates the constitutionality of laws. What could be simpler than a government operating on the basis of laws?
The Supreme Court began a new term on Monday. This will be the first full term in which both of President Trump’s appointees participate. The court has decided to hear cases on abortion, gay rights, gun rights and DACA. What impact will Neil Gorsuch and Brett Kavanaugh have on rulings? The answer to that question will likely be the driving force of the 2020 presidential election.
Since the term doesn’t end until June 2020, the court could be drawn into the fray between the other two co-equal branches of government. Of course, that fray is purely political and has nothing to do with making or administering laws. The judiciary branch is supposed to be above politics. Nevertheless, justices are called on to interpret laws based on their own understanding of the Constitution, including what authority the Constitution gives to the branches.
In the event the House succeeds in impeaching the president, Chief Justice John Roberts would preside over the Senate impeachment trial in which a two-thirds majority is required for conviction. Since the Republicans control the Senate, impeachment seems very unlikely. But remember, impeachment is not as much a legal process as it is a political process which raises the question of how much will the impeachment process affect the 2020 election.
Two of the cases essentially have nothing to do with law. The New York City gun rights law at issue was a city regulation that limited where gun owners could carry their guns. After the Supreme Court agreed to take on the case, NYC removed the parts of the regulation under contention.
The other case involves President Trump’s cancellation of President Obama’s immigration program known as DACA, Deferred Action for Childhood Arrivals. Lower courts have ruled against the president saying he hasn’t given a good enough reason yet for cancelling the program. Remember, DACA is a policy created by an executive memorandum, and lower courts have essentially ruled one president can’t change a policy created by another president without a judicially approved reason.
The abortion case is about a Louisiana law that requires an abortion doctor to have admitting privileges at a hospital within 30 miles of the facility where abortions are performed. In a similar case three years ago, Justice Kennedy was the swing vote that ruled such a requirement was unconstitutional. Justice Kavanaugh is now sitting in Justice Kennedy’s seat.
The gay rights case involves three different cases in which two gay men and a transgender woman were fired from their jobs. Does the 1964 Civil Rights Act prohibit discrimination on the basis of sexual orientation or gender identity? It prohibits discrimination on the basis of “sex,” but what does that mean? The court will decide.
Someone said something to some people that elections have consequences. That quip has lit a lot of fires. Regardless of how the court rules on this term’s cases or how the impeachment process plays out, the 2020 presidential election is going to be a real barn-burner. We hope the Constitution survives the Washington maelstrom..
Daniel L. Gardner is a syndicated columnist who lives in Starkville. Contact him at PJandMe2@gmail.com.