Election 2020: SCOTUS and the Senate

September 24, 2020

By Robert Yeakel, Director of Government Relations

With just forty days until Election Day, the stakes have already been high for both Republicans and Democrats throughout this tumultuous 2020. Both sides have made this election a referendum on the direction of the nation, but many questions remain. Can President Trump secure a second term with both COVID-19 and the economy taking a heavy toll on Americans? Can Democrats ride their 2018 midterm successes and not only usher in a Biden presidency but take the Senate as well? And finally, what “October surprise” could be waiting in the wings to upend the race?

As if this year could not get any more difficult, the news of Associate Justice Ruth Bader Ginsburg’s passing over the weekend has quickly led to frantic speculation and will place even more consequence on the outcome of November. Within hours of the announcement of the Associate Justice’s death, politicos across the spectrum began weighing in on how this gigantic ripple will change the dynamics of the race for not only control of the Senate but the White House as well.

Just forty days out from Election Day, President Trump has announced that he will nominate a candidate to fill Associate Justice Ginsburg’s seat on the Supreme Court as soon as this week. Meanwhile, Senate Majority Leader Mitch McConnell (R-KY) has stated publicly that Senate Republicans will move to confirm the President’s choice as quickly as possible. While it remains to be seen whether a Republican-controlled Senate will be able to move through the nomination process and hold a confirmation vote before November 3rd – the average time it takes for the Senate to perform its “advise and consent” role for Supreme Court nominations is roughly 69 days – the stakes have undoubtedly been raised by this vacancy on the high court.

Adding to Democrats’ consternation is the fact that McConnell and Senate Republicans blocked any action on President Obama’s choice to fill the seat of the late Antonin Scalia in 2016, which came almost 8 months before the election. Although McConnell has argued that his 2016 “precedent” only is applicable in situations where the White House and Senate are controlled by opposite parties, many Democratic voters have immediately pointed to this hypocrisy as further reason to mobilize against vulnerable Republican senators up for reelection this cycle. Similarly, many see Trump and McConnell attempting to fill this SCOTUS vacancy as a rallying cry for Republican voters, especially if McConnell chooses to wait until after November 3rd to schedule a confirmation vote. Ultimately, the political complexity created by Associate Justice Ginsburg’s passing will likely embolden turnout of Democratic voters more than it will bring disaffected Republicans back to the polls, therefore making it more difficult for Senate Republicans to keep their majority; regardless of how and when McConnell schedules the confirmation of a new SCOTUS appointee.

Beyond the fight to fill the Supreme Court and its effect on the November election, a dramatic shift in legal perspective on the high court could have an outsized impact on the independent grocery industry. With the majority of the Supreme Court’s 2020-2021 docket of cases already scheduled, one landmark ruling could precipitate a huge change on employers’ responsibilities to provide health insurance.

The Supreme Court is scheduled to begin opening arguments on November 10th for California v. Texas. The case brings into question the constitutionality of the 2010 Affordable Care Act after the subsequent passing of the Tax Cuts and Jobs Act of 2017. The Republican tax bill eliminated the ACA’s “individual mandate” that created a tax penalty for Americans without health insurance. The Supreme Court will decide whether the ACA – in full or parts – is now unconstitutional without the individual mandate provision and could declare a significant portion of President Obama’s landmark healthcare law as an improper use of Congress’s taxation powers.

While Chief Justice John Roberts has sided with the “liberal” side of the court in past ACA rulings, effectively allowing the ACA to continue as law, if McConnell is able to confirm Trump’s nominee to the vacancy left by Ginsburg, it is highly likely that a majority of the court – i.e. five “conservative” justices versus three “liberal” justices and Chief Justice Roberts – will decide to declare the ACA or portions of the law unconstitutional. This case could have a sweeping impact on the ACA’s “employer mandates” as well as the healthcare law’s “full-time employee” definitions and other health insurance requirements of employers.

2020 has been full of tumult, and the passing of Associate Justice Ginsburg will unfortunately only add fuel to the partisan fire that has erupted across the country in advance of November’s elections. While the outcome is far from decided, the impacts can and will be a factor for independent grocery heading into the new year.