AUWCL Presents “On the Docket: Looking Ahead at the New Supreme Court Term”
Oct. 2, 2020
On Thursday, Oct. 1, Washington College of Law’s Program on Law and Government and the ABA Division for Public Education presented a virtual in-depth panel discussion covering the lasting impact of Justice Ruth Bader Ginsburg, the nomination of Judge Amy Coney Barrett to fill her vacancy, and key cases the U.S. Supreme Court will address when its new term commences on Oct. 5.
Over 300 students, faculty, staff, and community members attended “On the Docket: Looking Ahead at the New Supreme Court Term” – an annual event which has been held for more than 20 years.
The webinar was moderated by Supreme Court expert Professor Steve Wermeil, and featured insights from:
- Kimberly Atktins, Boston Globe opinion writer and MSNBC contributor
- Erwin Chemerinsky, Dean of UC Berkeley Law
- Greg Garre, Partner at Latham & Watkins
- Cynthia Jones, AUWCL Professor and Director of the Stephen S. Weinstein Advocacy Program
Atkins noted the remarkability of how, even when she was not in the majority on opinions relating to reproductive rights or voting rights, Justice Ginsburg found a way to make an impact.
“After the news that she had passed, it struck me that she rose to this place in pop culture – Notorious RBG – and she did that largely through the force of her dissents,” Atkins said. “The use of bench dissents wasn’t popular then…And now other justices, too, use that as a tool to not only vocally oppose an opinion they disagree with, but also as she did, to call on Congress to act.”
Jones said it is unclear how many of the upcoming cases on the docket will be decided by the Court, given the absence of Ginsburg and her influence on SCOTUS jurisprudence.
“One person’s death can so significantly impact the rights of a generation, so we’re at this crisis point of trying to predict to an extent how the court will rule this term,” she said.
Since 1975, the average time between nomination and confirmation of a Supreme Court Justice has been 68 days Garre said, though certain nominees have been confirmed more quickly. But none of those had taken place during the heart of an election season.
“That makes this different, and feels more consequential,” he added. “[Barrett] has described her judicial philosophy as similar and in line with Justice Scalia, so there’s no question she is conservative and this is of course markedly different than Justice Ginsburg...You go back to Justice Thomas taking Justice Marshall’s seat, that type of change is going to certainly have an impact on where the Court is.”
The panel discussed a number of cases that are scheduled to be argued in the coming weeks, including Jones v. Mississippi; Torres v. Madrid; California v. Texas; Fulton v. City of Philadelphia, Pennsylvania; Department of Justice v. House Committee on the Judiciary; Collins v. Mnuchin; Nestle USA, Inc. v. Doe; and Google v. Oracle.
Torres v. Madrid – which seeks to determine whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, or whether physical force must be successful in detaining a suspect to constitute a “seizure” – is a unique case, as it brings together numerous contemporary issues that are being discussed and debated in public discourse, Jones said.
“The call for racial justice reform; Torres was a person of color. The Breonna Taylor execution. The Black Lives Matter protests. The issue of qualified immunity. The use of deadly force. All of these issues are brought together in the Madrid case,” Jones noted.
California v. Texas, Chemerinsky said, deals with the constitutionality of the 2010 Affordable Care Act following the passage of the Tax Cuts and Jobs Act of 2017. The law eliminated the "individual mandate" that created a tax penalty for Americans without insurance. Lower courts found that this individual mandate was a critical provision of the ACA and without it, some or all of the ACA was potentially unconstitutional and an improper use of Congress's taxation powers.
“I think it surprised many that the Court took the case at this time. The question is, is the individual mandate unconstitutional, and if so, does that make the whole Affordable Care Act unconstitutional?” said Chemerinsky. “It comes to the Supreme Court in the midst of the most serious public health crisis in over a century. If the Court were to strike down the Affordable Care Act, it would cause at least 21 million people to lose their health insurance…That’s what makes the case so important, not just from a constitutional law perspective, but for millions of peoples’ lives.”