October 21, 2021

SCOTUS Term Preview


KEY TAKEAWAYS

  • The recently begun Supreme Court term is the first full term since Justice Amy Coney Barrett joined the court, and there are many opportunities for major decisions.
  • The court is scheduled to hear a case, Dobbs v. Jackson Women’s Health Organization, that could overturn Roe v. Wade.
  • There are also major Second Amendment and religion cases on the docket that could reshape those doctrines for decades to come.

The Supreme Court started its new term on October 4, the first full term since Justice Amy Coney Barrett joined the court. All of the cases to be heard this term were granted certiorari after her appointment. This means the current term is the first where the 6-3 majority of Republican appointees on the court has total control over what cases will be heard. The stage is set for significant rulings on a wide variety of issues, most prominently abortion, the Second Amendment, and religion.

Oral Arguments Scheduled for Major Cases

SCOTUS PREVIEW

Abortion

The most widely anticipated case in the coming term is Dobbs v. Jackson Women’s Health Organization. In September, the Supreme Court declined to stay a Texas law allowing for lawsuits against people who perform or abet the performance of abortions. At the time, some commentators erroneously said that the court had overturned Roe. They were wrong, but the court may overturn Roe in Dobbs.

Unlike the Texas case, Dobbs presents only a single issue to the court: are all pre-viability prohibitions on elective abortions unconstitutional? The Mississippi state law in question prohibits all abortions after 15 weeks, with exceptions for medical emergency or severe fetal abnormality. While there are ferocious debates over when viability starts, and some important caveats on terminology, Mississippi concedes that the law does prohibit some pre-viability abortions.

The viability issue is key because of the doctrine that emerged from Roe and Planned Parenthood v. Casey. Roe established the proposition that there is a constitutional right to a pre-viability abortion. Casey tweaked that proposition to allowing pre-viability regulation so long as it does not impose an “undue burden” on a woman’s right to obtain a pre-viability abortion.

The most straightforward way the case could play out is for the conservative justices to uphold the Mississippi statute on the grounds that there is no constitutional right to abortion. This would overturn Roe and return the issue of pre-viability abortion to state regulation.

The court also could rule that the Mississippi statute does not impose an undue burden because women could still obtain an abortion before 15 weeks, resulting in Mississippi winning the case but leaving Roe and Casey at least nominally intact. The court could remand the case for an evidentiary hearing on medical and scientific issues about viability or women’s health, possibly setting up a later decision that would overturn Roe.

The fact that at least four justices voted to hear this case suggests some sort of change in constitutional abortion law is likely. A three-judge panel of the 5th Circuit unanimously struck down the Mississippi law, so there would be little reason to grant certiorari on this case unless at least four justices thought the Supreme Court needed to change something.

Second Amendment

The Supreme Court decided in the landmark case District of Columbia v. Heller in 2008 that there is an individual right to keep firearms in the home for self-defense. Since that decision, the court has not clarified to what extent the right extends outside the home.

In New York State Rifle and Pistol Association v. Bruen, the court is examining New York’s limitation on carrying a firearm for self-defense outside the home. New York allows certain classes of people, like prison employees, to carry a handgun on the job. All others must apply for a self-defense license, which the state grants only if the applicant demonstrates “proper cause.” 

This case could clarify a number of important aspects of the Second Amendment. Heller allowed that some restrictions on guns could pass constitutional muster, but subsequent litigation in lower courts has not clarified what level of regulation is acceptable. For example, the New York law is not a categorical prohibition on carrying firearms, but the “proper cause” restriction is undeniably vague in the context of a constitutional right. Imagine a law allowing for suspension of the Sixth Amendment right to trial by jury if the state government considered that there was no “proper cause” for a particular litigant to have a jury. The case could also clear up how the Supreme Court expects lower courts to analyze Second Amendment challenges. Several justices have indicated that courts should focus on text, history, and tradition. Lower courts, however, have generally analyzed cases using the familiar tiers of scrutiny approach and have often applied intermediate scrutiny.

The Supreme Court heard a different case involving the same group last year. The court did not reach the substantive merits of the case because the city of New York, the defendant in that case, changed its rule, rendering the case moot.

Religion

In recent years, the court has decided two major cases – Trinity Lutheran v. Comer and Espinoza v. Montana – involving restrictions on access to state funding by religious institutions. In Trinity Lutheran, the court held that a state violated the free exercise clause of the First Amendment by disqualifying religious entities from receiving grants to pay for playground resurfacing. In Espinoza, the court struck down a state constitutional provision prohibiting state tuition assistance to attend religious schools.

The next logical question from these cases is whether states can disqualify religious institutions from using government aid for religious uses. Carson v. Makin presents exactly this question. Maine allows the provision of financial assistance for students to attend private school, including a religious school, but only if the school will not use the funds for “promot[ing] the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” Plaintiffs in the case want to use the tuition assistance to send their children to schools specifically because those schools align with their families’ religious beliefs. 

Issue Tag: Judiciary