Tomorrow, beginning at 10 a.m. in the East, the Supreme Court will start issuing its final opinions of the term. The big cases yet to be decided include: June Medical Services v. Russo (regarding abortion), Trump v. Mazars USA and Trump v. Vance (regarding access to President Trump’s tax returns case), Little Sisters of the Poor Sts. Peter and Paul Home v. Pennsylvania (regarding the conscience exemption from Obamacare’s birth control mandate), and Espinoza v. Montana Department of Revenue (regarding tax credits and religious schools).
Having incorrectly predicted the result of Michael Flynn’s case in the D.C. Circuit, and not having listened to oral argument in any of the Supreme Court cases listed above, I will not predict their outcome. I do know that conservatives have just lost two big Supreme Court cases — the absurd ruling that Title VII’s ban on employment discrimination on the basis of sex extends protection to gays, lesbians, and transgender individuals and the strained ruling that President Trump’s executive order reversing President Obama’s executive order on DACA is unlawful.
For what it’s worth, some of Washington, D.C.’s top conservative lawyers are pessimistic about the rest of the term. There’s a sense that, as a general matter, Chief Justice Roberts has joined forces with the four left-liberal Justices to form a center-left majority. There’s also a lack of confidence that Justices Gorsuch and Kavanaugh are solid conservative votes.
I share the concern over Roberts. As for Gorsuch and Kavanaugh, I think it’s too early to tell. Gorsuch’s opinion in the Title VII case raises legitimate concern, but may be a one-off. We’ll know more by this time next week. The way these things go, if the two new Justices aren’t reliable conservatives at this juncture, we can expect the worst from them within ten years.
In the Trump tax return cases, there’s concern that the Chief Justice will stick it to Trump because he hates the president. Is this concern justified? I don’t know.
In the abortion case, the issue is “whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.” I sense little optimism from plugged-in conservative lawyers that the pro-life side will prevail. I should note, however, that there is a limit to how “plugged in” to the Supreme Court one can be.
There’s a bit more optimism that the Court will stand up for religious freedom in the two cases where this, broadly speaking, is the issue. But even if the conservative side prevails here, this term will still be a bad one for conservatives if the Court, on top of what it already has done, backs the left in the cases involving Trump’s tax returns and abortion.