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Supreme Court prepares to start a new term with only eight

A very different Supreme Court will meet in two weeks to grapple with the potential of 4-4 splits and a caseload that includes no less than the future of the Affordable Care Act and possibly the presidential election.

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Ariane de Vogue
, CNN Supreme Court Reporter
CNN — A very different Supreme Court will meet in two weeks to grapple with the potential of 4-4 splits and a caseload that includes no less than the future of the Affordable Care Act and possibly the presidential election.

As the next term begins, the justices will also find themselves in a spot they often seek to avoid: the center of a politically ferocious fight playing out across the street on Capitol Hill.

It's been a mission of Chief Justice John Roberts to keep the court above the political fray, but that will be impossible as election related petitions flow into the court and the confirmation battle plays out across the country. Roberts will navigate a fraught moment in history, at a time when his own place on the court might be about to shift. On top of that, he must help plan a memorial for the late Justice Ruth Bader Ginsburg and balance the wishes of mourners with the reality that the court has been closed to the public since March because of the coronavirus pandemic.

Emergency petitions

At the time of her death, the court was considering an issue critical to Ginsburg's legacy: abortion, as the Trump administration filed an emergency request to reinstate FDA restrictions on a pill used to induce early abortions.

The court's order -- most certainly delayed due to Ginsburg's tragic death -- could reveal where Roberts might be headed in the future. Last term, he voted with the court's liberals to strike down a restrictive Louisiana abortion law. But writing alone, he also peeled away at recent precedent -- a move that worries supporters of abortion rights. The chief's vote on the pending order could illuminate his path forward on the issue.

Other petitions -- related to the election -- are also bound to reach the high court. In April, for example, the justices split badly on an emergency order related to absentee ballot deadlines in Wisconsin during the early months of the pandemic. Ginsburg dissented in that case, writing that the court's reasoning "boggles the mind."

Asked last week whether the court is doing anything to prepare for the onslaught of election-related petitions, Justice Stephen Breyer said the justices make no special accommodations. The court has learned, he said Thursday in an event hosted by George Washington University, "to deal with a case when it comes up."

As if their job isn't complicated enough, the justices have been unable to meet in person for months. On September 29, they are scheduled to gather by phone to consider the piles of petitions that have built up over the summer. They include cases on qualified immunity, an Arizona ballot harvesting law and a Mississippi abortion restriction.

In last week's appearance, Breyer noted that the justices can't even do video conferences with each other to benefit from some face to face contact out of security concerns the feed would be hacked.

A new term

When the virtual gavel comes down on the first Monday in October the justices will begin the term, by telephone, releasing a live audio feed.

On November 10 -- a week after the election when the final tally might still be in limbo -- the justices will take up the Affordable Care Act. The stakes are stratospheric. Challengers to Obamacare, including the Trump administration, say that the law's individual mandate is unconstitutional, and the entire law must fall.

In 2012, Roberts cast a critical vote to uphold the law under Congress' taxing power. But in 2017, the Republican-led Congress cut the tax penalty for those who lacked insurance to zero as part of a tax overhaul. Texas and other Republican-led states sued, arguing that since the mandate was no longer tied to a specific tax penalty, it had lost its legal underpinning.

The justices will review a lower court opinion that struck the mandate but punted on whether the rest of the massive law -- even provisions unrelated to the mandate -- could remain on the books.

If the case is reviewed by only eight justices, there is always a risk that they could split 4-4. When the court is evenly divided it is basically left with few options. It allows the lower court opinion to remain in place but creates no new precedent to guide the lower courts. It is a highly unsatisfactory outcome for the court and something it tries to avoid whenever possible.

Without an alternative in place, that could mean the end of the Affordable Care Act's protections for those with pre-existing conditions, including barring insurers from denying coverage or charging higher premiums based on a person's medical history. It also threatens the coverage of millions of Americans who are insured through the Obamacare exchanges and Medicaid expansion -- both of which are expected to increase this year amid coronavirus-fueled layoffs.

Down the road

A new nominee will impact the court -- and the docket it decides -- for years to come.

If Trump succeeds in his quest to add a new member, conservatives will be energized to move the court even further to the right on hot button issues.

Already, conservatives on the court have expressed an interest in taking up the Second Amendment again, and Justice Clarence Thomas, for instance, believes the court's abortion jurisprudence is in disarray.

Percolating in the lower courts is also a massive case concerning affirmative action concerning the admissions plan at Harvard.

Last term, the justices also dodged a series of cases on qualified immunity, a legal doctrine some say shields law enforcement and government officials from accountability, and a new justice might encourage movement on that front.

Meanwhile, since the retirement of Justice Anthony Kennedy, Roberts has played a role as the swing vote at times. That might change with a new conservative justice. Roberts will still be chief, and have a powerful assignment power, but his own role could shift.

The justices often say in speaking appearances that a new justice changes the entire court. That change will come as progressives mourn the death of a liberal icon, the country works through a divisive election and Capitol Hill once again plays host to a fiery confirmation process. All in the middle of a pandemic.

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