Breyer’s Fate, Obamacare Top Supreme Court Agenda in Final Weeks

The Supreme Court heads into the home stretch of Justice Amy Coney Barrett’s first term with a list of big-money and culturally divisive cases still to be decided.

Between now and the end of June, the court is due to rule in 23 argued cases, including the latest Republican challenge to the Affordable Care Act and a multibillion-dollar suit against the federal government by Fannie Mae and Freddie Mac shareholders. The court is scheduled to issue the first of those remaining opinions on Monday and Thursday.

The conservative-leaning court will also flesh out the agenda for its next term, which starts in October and already includes a potentially watershed abortion case and the first major gun-rights clash in more than a decade. One case it could add aims to abolish race-based college admissions.

Here’s what is atop the court’s agenda for the next three-plus weeks:

Will Breyer retire or remain on court

The most eagerly awaited decision will come from 82-year-old Justice Stephen Breyer, the subject of intense speculation that he might retire when the term ends. Although Breyer hasn’t given any indication he’s ready to step down, some progressive activists are urging him to do so now, while Democrats control both the White House and Senate.

Stephen Breyer

Photographer: Erin Schaff/The New York Times/Bloomberg

A 1994 appointee of President Bill Clinton, Breyer usually sides with the court’s liberal wing in divisive cases. But he’s also a pragmatist and consensus-builder willing to join his conservative colleagues at times in narrowly crafted opinions. Should Breyer retire, Biden would have a chance to fulfill his pledge to nominate the first Black woman to the high court.

Obamacare faces key test in GOP challenge

Nine years after Chief Justice John Roberts cast the decisive vote to uphold the law, also known as Obamacare, Republicans are again seeking to topple it.

Both cases hinged on the so-called individual mandate, which originally required people to acquire insurance or pay a tax penalty. In the 2012 ruling, Roberts said the provision was a legitimate use of Congress’s constitutional taxing power. But a GOP-controlled Congress zeroed-out the tax in 2017, and Republicans now say the change undercuts the rationale for upholding the measure.

Arguments in November suggested the court is unlikely to void the entire law. Roberts and another pivotal justice, Brett Kavanaugh, suggested that if the court invalidates the individual mandate, they would “sever” that provision and preserve the rest of the law.

Obamacare supporters once viewed the individual mandate as crucial to the law’s success. But with the tax penalty gone, a decision voiding the mandate would have minimal impact -- as long as the court stops there. With health care accounting for a sixth of the U.S. economy, and with tens of millions of Americans covered by Obamacare, a decision that goes further could have a seismic impact.

Fannie, Freddie shareholders seek billions

Obamacare aside, no remaining case has as much potential financial impact as a multifaceted lawsuit by shareholders of Fannie Mae and Freddie Mac, the government-sponsored enterprises that buy and sell mortgages.

The suit challenges the 2012 agreements that let the U.S. government collect more than $300 billion in profits from Fannie and Freddie. The Justice Department is arguing that two provisions of federal law bar the suit from going forward. Should the court disagree, the suing investors would have a chance to collect a massive settlement.

A second line of argument could have an important spinoff effect. The investors say the Federal Housing Finance Agency, which helped craft the disputed agreements and oversees Fannie and Freddie, is unconstitutionally structured because the president has only limited power to fire the director.

Should a majority accept that argument, it might resolve the issue by giving Biden a freer hand to dismiss director Mark Calabria, an advocate for releasing the mortgage giants from government control.

Religion, gay rights at issue in foster care case

A key culture-war case tests the intersection of LGBTQ and religious rights. At issue is whether Philadelphia violated the Constitution by excluding Catholic Social Services from part of the city’s foster-care program because the charity wouldn’t help place children with same-sex couples. The city says it was enforcing an anti-discrimination ordinance.

The Catholic group is asking the court to overturn a 1990 decision that said the government can enforce generally applicable laws without making an exception for religious groups. Arguments in November suggested the court’s conservatives weren’t inclined to explicitly overturn the ruling.

Even if Catholic Social Services secures only a narrow win, the term has already been a success for religious-freedom advocates. A series of orders issued by the court’s conservative wing have bolstered church rights by blocking capacity restrictions state and local governments had imposed on houses of worship during the pandemic.

Voting Rights Act limits in play in Arizona

Eight years after the court wiped out a core part of the landmark 1965 Voting Rights Act, the justices may impose new limits on the law’s other linchpin, known as Section 2.

The court is considering whether Arizona discriminated against racial minorities with its criminal ban on what critics call “ballot harvesting” and its practice of rejecting ballots cast in the wrong precinct.

Arguments in March indicated the court is all but certain to uphold the policies, so the key will be what reasoning the majority uses. The court has never said what legal test applies when Section 2 is invoked to challenge policies that make it harder for minorities to register and to vote.

A tough standard for challenges would buttress the Republican push for new election rules around the country ahead of the 2022 election.

Loyola-Chicago Ramblers and the Oregon State Beavers in the Sweet Sixteen round of the 2021 NCAA Men’s Basketball Tournament.

Photographer: Justin Casterline/Getty Images

NCAA fights more compensation for student athletes

In an antitrust case, the court could clear the way for greater compensation for student-athletes and loosen the National Collegiate Athletic Association’s grip over college sports.

The NCAA is challenging a lower court order that let member schools provide more education-related benefits, including computers and internships, to student-athletes. The association says it’s entitled to broad antitrust immunity in its efforts to preserve the amateur nature of college sports.

The association’s stance drew skepticism from several justices during the argument in March. The antitrust laws “should not be a cover for exploitation of the student-athletes,” Kavanaugh said.

Goldman Sachs seeks end to class action suit

Goldman Sachs Group Inc. is seeking to end a shareholder lawsuit that accuses the firm of giving false assurances about its vigilance in avoiding conflicts of interest. The case stems from a 2010 Securities and Exchange Commission suit that claimed Goldman fraudulently sold a mortgage-backed investment, known as Abacus, that was secretly designed to fail. The SEC suit sent share prices tumbling.

The case turns on technical class action issues, and arguments in March suggested the justices were inclined to rule narrowly, giving Goldman Sachs at most a new chance to argue for dismissal of the suit. “This seems like an area that, the more I read about it, the less that we write, the better,” Breyer said.

Refinery waivers from renewable fuel rules examined

In a case that could cost small oil refineries hundreds of millions of dollars down the road, the court will rule on the availability of waivers from government mandates to mix renewable fuels into gasoline and diesel.

A provision in a 16-year-old law lets the Environmental Protection Agency exempt small refineries from annual blending quotas if they face “economic hardship” in complying. A federal appeals court said those waivers are reserved for refineries that have continuously secured extensions of their initial exemptions.

Patent ‘death squad’ may be reined in

The court indicated in March it might curb the power of a board that some call a patent “death squad” because it has invalidated more than 2,000 patents. Critics say the board, backed by some of the nation’s largest technology companies, has so much independence it violates the Constitution.

Key justices suggested they could give the presidentially appointed director of the U.S. Patent & Trademark Office the power to review and reverse board decisions.

Speech, child slavery claims among remaining cases

The court will also be deciding:

Whether to curb human-rights suits against U.S. companies and toss out a lawsuit that accuses Nestle SA’s U.S. unit and Cargill Inc. of complicity in the use of child slavery on Ivory Coast cocoa farms;
Whether to jump-start PennEast Pipeline Co.’s planned natural-gas line by letting it sue New Jersey to secure crucial land-use rights;
Whether a Pennsylvania high school violated the First Amendment by punishing a 14-year-old student for a profane Snapchat rant that denigrated the school’s cheerleading team;
Whether to invalidate a California requirement that charities disclosure their top donors in reports to the government.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net