An overriding question is how much deference the 6-3 conservative-liberal court majority will afford the current President. Republican-led states and conservative organizations have been challenging a swath of Biden policies. Such disputes over immigration, the environment and tax and economic policy, could become a staple of the Supreme Court’s docket.
During Donald Trump’s presidency, the court blocked lower court orders against immigration and asylum restrictions and Trump’s diversion of federal funds to build a wall at the border with Mexico. Biden Justice Department lawyers are seeking the same deference to the Executive Branch that Trump enjoyed.
The new US Centers for Disease Control and Prevention eviction moratorium, to protect renters facing economic hardship and at risk of spreading the virus if forced to move, would run until October 3. It covers fewer counties than the first but still applies to much of the US, places with high levels of virus transmission.
Fletcher emphasized in his filing Monday backing the new moratorium that a surge in Covid cases since late June caused by the Delta variant necessitated executive action.
Fletcher again cited the deference the Supreme Court has given in the past to public health experts.
“In addressing the many emergency applications that have arisen out of the present pandemic, the Court and individual Justices have often recognized that they should respect the judgments of policymakers charged with protecting the public health,” he wrote.
Through the four years of Trump litigation, the Republican-appointed conservative justices and Democratic-appointed liberal justices routinely divided in emergency cases testing whether a policy could be enforced while the merits of a dispute wended through lower courts.
Led by Roberts, the conservative majority routinely prevailed and contested Trump policies were enforced, over orders from lower court judges attempting to block the new administration practices.
“It is hard to say what is more troubling,” Sotomayor wrote in a dispute over a tougher policy for green card applicants needing public assistance that lower court judges had tried to halt, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
Roberts, who loathes attention on the court’s political divisions, has tried to dilute the trend that appears to favor Republican initiatives, including by voting on rare occasion with the left or triggering a succession of ideologically mixed actions within a case or series of cases.
Why this week’s SCOTUS actions matter
The pending disputes over the eviction moratorium, brought by landlords, and the revised migrant practice, brought by Texas, could provide early indications of regard for Biden legal arguments.
In the Supreme Court session that ended last June, the Biden administration abandoned previously filed Trump’s arguments and switched the government’s position in several cases.
The justices have separately asked for the administration’s views of Harvard’s admissions practices that include consideration of applicants’ race, currently being challenged by a group that says Harvard is violating federal law and disadvantaging Asian-American students.
All indications are that Biden’s legal team will back Harvard, the opposite stance of the Trump administration.
And when the time comes later this fall for Biden lawyers to weigh in regarding abortion rights and gun control, they are certain to reverse the Trump pattern of opposition on those issues. How that might alter the course of the Roberts Court conservatism will be seen during the 2021-22 session, through next summer.