Abortion is just the beginning as Supreme Court tackles guns and religion


The United States Supreme Court’s tenure that begins Monday is not just about abortion. It only looks that way.

The explosive issue promised to be high on the agenda even before the court let Texas start banning abortion after six weeks pregnant a month ago. The court will consider a Mississippi case that could curtail reproductive rights nationwide and even ask judges to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide.

But more broadly, Justice Amy Coney BarrettThe court’s first full term offers a menu of opportunities for the court’s conservative wing to exploit its 6-3 majority – and give Republicans the kind of reward they envisioned when they passed his confirmation to the Senate just before the 2020 elections.

Before term ends in June, judges will rule on guns, religion and federal regulation, and they could add cases on affirmative action, redistribution and president Joe bidenthe vaccination mandate of.

These cases take place in a context of slip public endorsement for the court; and the efforts of judges from all ideological backgrounds to build public confidence. Four judges – Barrett, Stephane Breyer, Samuel alito and Clarence thomas – have publicly asserted in recent weeks that the court’s decisions were based on law, not politics or personal preferences.

“The tribunal’s legitimacy rests on its ability to show the public that a change in staff does not mean a radical change in the law” in high-profile cases, said Farah Peterson, law historian who teaches at law school from the University of Chicago. “And that’s what’s going to be at stake in this mandate.”

WATCH: U.S. Supreme Court Associate Justice Stephen Breyer explains how justices try to find common ground among themselves on closed cases.

(Source: Bloomberg)

Here’s what’s on the court’s agenda so far for the next nine months:

Confrontation of abortion

The biggest abortion confrontation in a generation will be take place Dec. 1, when Mississippi defends its ban on the procedure after the 15th week of pregnancy. Compliance with the law would force the court to overturn the 1992 decision in Planned Parenthood v. Casey, that states cannot impose significant restrictions before fetal viability, a point the court suggested was around 23 or 24 weeks at the time.

The stakes have only risen since the Mississippi attorney general Lynn fitch filed her appeal in March 2020. At the time, she had not explicitly asked the court to overturn Roe and Casey. After Barrett took his seat and the court accepted the case, Fitch changed course, arguing in July that Roe was “extremely wrong” and should be dismissed.

Protesters at a Family Planning Day of Action rally in Brooklyn, New York on September 9.

Photographer: Desiree Rios / Bloomberg

“There are probably five voices to uphold the law,” said Christmas Francois, former president Donald trumpSolicitor General of and is now Appeals Counsel with Jones Day. He said overthrowing Roe and Casey is a “separate possibility”.

About a dozen states have trigger bans that would take effect if Roe is rescinded, while other states are set to put in place their own sweeping restrictions, according to reproductive rights advocates. They say a ruling in favor of Mississippi would leave women in much of the South and Midwest without legal access to abortion.

The ongoing struggle over Texas law could add an important new dimension. Abortion providers are urge in court to hear a fast-track appeal arguing that Texas improperly isolated its law from judicial review – and struck down a federal law – by making the measure enforceable only through private prosecution. The appeal asks the court to take the unusual step of hearing the case even though a federal appeals court has not resolved this issue.

The Supreme Court could also be called upon in the coming weeks to intervene in a Justice Department lawsuit that seeks to block Texas law and is currently pending in federal district court.

Judges will hear arguments separately on Oct. 12 in a case stemming from a Kentucky law that abortion rights advocates say would effectively ban the procedure after 15 weeks of pregnancy. The question is whether the Kentucky Attorney General Daniel cameron, a Republican, may take over the defense of the law after an appointment by the Democratic governor Andy Beshear decided to drop the case when the state lost an appeals court decision.

Concealed handguns

The court will hear its first major gun case in a decade on November 3, when judges will consider whether states should let most people carry handguns in public in self-defense.

The court is weighing an appeal from an affiliate of the National Rifle Association and two people who claim New York is violating their Second Amendment rights by issuing concealed transport licenses only to those who can demonstrate a special need for protection. New York is one of eight states that the NRA says prevent most people from obtaining a portering license.

Amy Coney Barrett

Photographer: Erin Schaff / The New York Times / Bloomberg

Although the court said in 2008 and 2010 that the Second Amendment ensures that most people can have a handgun in the home for self-defense purposes, judges never said whether this right extends to the public arena.

As with the abortion, the decision to bring the case underscored the likely impact of Barrett, who supported gun rights as an appeals court judge. Until Barrett replaces the late judge Ruth bader ginsburg last year, the court repeatedly dismissed virtually identical appeals.

The court “seems ready” to say the Second Amendment extends beyond the house, said Pratik Shah, Appeals Counsel at Akin Gump. “And if so, it’s hard to imagine a world in which this New York licensing system could continue to exist. So I think the real question here is, how far is the tribunal prepared to go? “

Religious rights

The court has repeatedly strengthened religious rights in recent years, and it could go even further with three scheduled cases.

In the last case, that the court accepted On Thursday, a Christian organization claims Boston is violating the Constitution by refusing to fly the group’s flag in front of city hall while agreeing to display the flags of other private parties. Boston maintains that it is engaging in government discourse, which is exempt from consideration of the First Amendment.

The court will also decide whether Maine can exclude religious schools from a tuition assistance program used by cities that do not operate their own public schools. Religious rights defenders seek to build on a 2020 decision which required Montana to let religious schools participate in a program that provides state-subsidized scholarships for private education.

And in a Case which could divide the judges along unusual lines, the court will rule on the religious rights of prisoners at the time of their execution. Texas inmate John Ramirez asks his Baptist pastor for permission to pray aloud and lay his hands on him as he died by lethal injection.

Federal regulations

In a term that so far is light on business cases, companies will be looking at a shock this could limit the power of regulators to give their own opinion on ambiguous federal laws.

The case, which will be debated on November 30, concerns cuts made by the Department of Health and Human Services in reimbursement of Medicare prescription drugs to hospitals that serve low-income and underserved communities. A group led by the American Hospital Association argues that the cuts cannot be aligned with federal law.

More broadly, the case tests a legal doctrine known as Chevron Deference that has drawn criticism in conservative circles in recent years. The doctrine, which takes its name from a 1984 Supreme Court ruling, forces courts to defer to agencies on the meaning of unclear laws if regulators’ interpretation is reasonable.

The United States Chamber of Commerce is among those urging the court to restrict Chevron’s use of deference, arguing that federal agencies “are only too happy to exploit the openings to expand their own powers.”

Bomber Marathon

The court will also consider an offer from the Justice Ministry to reinstate the death penalty for Dzhokhar Tsarnaev, who was convicted in the Boston Marathon bombing in 2013.

A federal appeals court dismissed Tsarnaev’s sentence, saying potential jurors were not properly questioned about the media coverage they consumed before the trial. The appeals court also said the trial judge should have allowed evidence involving an earlier crime which Tsarnaev said showed he was acting under the influence of his brother.

Biden’s administration is defending the conviction even though the president has said he will work to end the federal death penalty.

Courtroom dynamics

Monday’s arguments will mark the first case in person after a year and a half of phone sessions during the coronavirus pandemic. These will be the first courtroom arguments for Barrett as a judge, finally letting her sit in her designated seat at one end of the winged mahogany court bench.

Sessions will also be the first to include live courtroom audio, something transparency groups have long sought. The court allowed live audio of his phone sessions, but it was not clear until a few weeks ago whether the practice would continue during the new term.

The arguments will be closed to the public, although about two dozen journalists who regularly cover the court will be allowed to attend.

Among the unknowns is what Thomas will do with the new argument format adopted by the court. The senior judge has spent years without asking questions in traditional courtroom oral argument. But when the court switched to telephone arguments – and judges began to take turns asking questions rather than intervening at will – Thomas surprised many observers by becoming an active participant.

Now that they are back in the courtroom, judges will use a hybrid approach, starting with open questioning and giving each lawyer one-on-one time with the litigator at the end.

“It will be a bit of a work in progress,” said Paul Clement, advocate of appeal to Kirkland and Ellis.

To contact the reporter on this story:
Greg Stohr in Washington at [email protected]

To contact the editors responsible for this story:
Elizabeth wasserman at [email protected]

John harney

© 2021 Bloomberg LP All rights reserved. Used with permission.


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