While the Supreme Court is the highest in the land, it is not immune to COVID-19 regulations and stay-at-home orders. On April 13, the Court announced they would be resuming oral arguments by telephone conference beginning in the first week of May.
This decision was not made without pressure from the public. In a PBS research poll, 72% of Americans responded that justices should be conducting oral arguments remotely during the pandemic. In fact, 61% said that the oral arguments should be live streamed.
There has always been some resistance to live streamed oral arguments and cameras in the courtroom for fear that it would cause the proceedings to become like a spectacle. This would differ from the legal proding that currently occurs.
Garrett Epps, a professor of constitutional law at the University of Baltimore, questioned the Court’s absence during the start of this grim spring in an article for The Atlantic. He argued that if he could teach class via Zoom, the Court should be upholding their job as well.
“Two months is plenty of time for even those as busy as the justices to devise a way to hold oral arguments remotely — to show the nation that the courts remain stalwart in the face of terror,” Epps said in the op-ed.
Now, much to the public’s and Epps’s satisfaction, the Supreme Court will continue with oral arguments remotely.
Wisconsin Primary: Republican National Committee v. Democratic National Committee
There has already been some unseen, remote decision making by the justices. Most recently, Republican National Committee v. Democratic National Committee ultimately continued the Wisconsin primary that was held on April 7.
What happened with the Wisconsin primary was confusing and unprecedented, to say the least. On April 2, U.S. District Judge William Conley extended the absentee ballot deadline for voters; he reasoned that the COVID-19 crisis led to an increase in absentee ballot requests and did not leave Wisconsin voters enough time to receive and send back the ballots. So, an extension was needed.
Within two days, the Republican National Party and the Republican Party of Wisconsin appealed to the Supreme Court in hopes that the justices would block Conley’s decision and make it clear that absentee ballots had to be postmarked by election day, April 7.
Before the Supreme Court could decide, Wisconsin governor Tony Evers signed an executive on April 6 that would have suspended primary voting until June. But with Republican’s urgings, the state Supreme Court overturned the executive order. Once again, the issue landed in the hands of the U.S. Supreme Court.
In the eleventh hour, the Court made a 5-4 decision. Justice Brett Kavanaugh wrote the opinion for the majority: votes had to be cast in-person or sent by mail as long as they were postmarked by April 7, ballots would be received up until April 13. He reasoned that extending the postmark deadline would mean ballots were cast after election day, and could lead to voter fraud.
“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” Kavanaugh wrote in his opinion.
Justice Ruth Bader Ginsburg wrote a dissenting opinion that the other three liberal justices joined in on. Ginsburg emphasized that this was not a procedural issue about the District Court’s actions — as Kavanaugh argued — but rather, a matter of voter disenfranchisement.
“Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation,” Ginsburg wrote.
On April 7, poll workers risked their lives and voters weathered society to cast their ballots. But only about 31% of the eligible voter population turned out , a significant decrease from the 49% population turnout in the 2016 primary. To the chagrin of the Republican party, the election resulted in an upsetting victory for the Democrats.
Texas: Planned Parenthood v. Abbott
In the midst of a public health crisis, many states issued orders that ban any elective surgeries and medical procedures in order to preserve resources for COVID-19 patients. In Texas, this also included abortions. Planned Parenthood immediately turned to the courts to reverse this order to allow medication abortions and for women who would be too far along in their pregnancies to legally have an abortion in late April or May.
Originally, the 5th Circuit of Appeals blocked the request for medication abortions, which meant the Supreme Court was to decide in an emergency application case. Medication abortions would be the only medication service banned under Texas’s order.
In their application to the court, Planned Parenthood argued that this action is “severely and irreparably injuring” its patients and that there is “no evidence that prohibiting medication abortion will conserve hospital capacity or PPE to fight COVID-19.” Additionally, if a woman would have to travel to another state for an abortion, she increases contagion risks in this pandemic.
But in a recent turn of events, the 5th Circuit reversed their initial ruling and is allowing medication abortions to continue. The judges on the 5th Circuit expressed doubt that a medication abortion qualifies as a medical procedure. No longer was the decision up to the Supreme Court.
While Texas and the Supreme Court are in the clear for now, it is likely that additional cases will pop up as more states put bans on “nonessential” procedures; bans in Ohio, Oklahoma and Arkansas have already been upheld by lower federal courts. Soon, the Supreme Court may see a case questioning the constitutionally of abortion bans in the name of a national health crisis.