What to watch at the Supreme Court

Amy Marshak discusses the Supreme Court term at the Jewish Community Center of Northern Virginia. Photo by Jared Foretek.

Is a 40-foot cross that the American Legion erected in Bladensburg, Md., almost a century ago a religious symbol? Or is it a historic memorial to the dead World War I soldiers it was built for?

Amy Marshak, a litigator at the Georgetown University Law Center’s Institute for Constitutional Advocacy, considered that case before the Supreme Court, among others, recently at the Jewish Community Center of
Northern Virginia.

Marshak, a former clerk to Justice Ruth Bader Ginsberg, said that the court hasn’t been making big headlines since Justice Brett Kavanaugh’s confirmation hearings ended, but that doesn’t mean they aren’t doing significant work.
Here are four takeaways from what she told the audience:

The American Legion cross


In the case of The American Legion v. American Humanist Association, Marshak said that because Maryland has been maintaining the cross, it could be a violation of the Constitution’s Establishment Clause, which the American Humanist Association is arguing.

Marshak said the case could come down to which test the court applies. The “endorsement test” asks whether a government action equals an endorsement of religion, and is generally more restrictive of public displays of religion. The “coercion test,” on the other hand, asks if a government action compels or coerces anyone to observe or participate in a religious activity. This standard is much more permissive of public religious displays, and has recently been the favored standard among the court’s conservative wing, which holds an advantage since the confirmation of Kavanaugh.

The census citizenship question

Overall, according to Marshak, this is a much quieter court term than in previous years, with fewer high-profile cases. Still, she said, there are some cases being decided that will have a big impact on the country.

Marshak discussed a case the Supreme Court agreed to take on an expedited basis last month, over whether or not the U.S. Census can include a citizenship question in 2020. The justices jumped, Marshak said, because of the timely nature of the case: The Census Bureau reportedly has to begin printing its questionnaires this summer.

Marshak said the plaintiffs in the case may have their standing scrutinized; they are states who stand to lose representation if a citizenship question scares some from participating in the survey. But, she said, the Trump administration would have a difficult time overcoming the previous ruling, in which a federal judge in New York ruled that the question could not be added and that Secretary of Commerce Wilbur Ross had misrepresented the department’s reasoning for adding the question (he had said it was to better enforce the Voting Rights Act, but emails released through the lawsuit found that not to be true) and that the government’s process for adding the question had six different problems.

“It’s a big deal,” Marshak said, citing some research that found the question could cause non-responses to increase by more than 5 percent in some districts. “Not counting a significant number of people can make a big difference in who gets represented.”

On abortion

Marshak also touched on a Louisiana abortion law that was blocked by the Supreme Court in February. The law bore many similarities to a Texas law that the court struck down in 2016, saying it placed an undue burden on women seeking abortions. Since the appointment of two conservative justices since then, though, some liberals have feared that the landmark Roe v. Wade ruling legalizing abortion in all 50 states could soon be undone.

But Marshak pointed to the court’s 5-4 ruling upholding a lower court decision to block the Louisiana law as evidence that things may not shift so drastically. Chief Justice John Roberts joined the four liberal justices in the ruling.

“It seems like Roberts cares a lot about the perception of the court, and may not want to get too far from precedent on such an important issue,” Marshak said.

On Ruth Bader Ginsberg

Marshak described the busy life of a Supreme Court justice: reading every brief, reviewing every petition, and more. But she said Ginsberg has an incredible attention to detail and never attempts to win people over by misrepresenting the other side. It was this quality, Marshak said, that Justice Antonin Scalia so admired. The two were famously close friends despite representing opposite ideological sides of the court.

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