WASHINGTON – The future of abortion rights is in the hands of a conservative Supreme Court that begins a new term on Monday that also includes important cases on gun rights and religion.
The court’s credibility with the public could also be at stake, especially if a divided court overturn the landmark Roe v. Wade of 1973 which established a woman’s right to have an abortion nationwide.
Judges are returning to the courtroom after an 18-month absence caused by the coronavirus pandemic, and the possible retirement of 83-year-old liberal judge Stephen Breyer is also looming.
This is the first full term with the tribunal in its current alignment.
Trump and the Republicans who controlled the Senate moved swiftly to take the seat shortly before the 2020 presidential election, sparking a dramatic change in the composition of the tribunal that paved the way for a potentially law-changing tenure on several issues highly publicized.
With abortion, guns and religion already on the agenda, and a challenge to affirmative action pending, the court will answer a key question over the next year, the professor said. University of Chicago Lawyer David Strauss. “Is this the term in which culture wars come to the Supreme Court in an important way?” Strauss said.
No problem is greater than abortion.
Judges will hear arguments Dec. 1 in Mississippi’s attempt to impose a ban on most abortions after 15 weeks of pregnancy. Lower courts blocked the law because it is inconsistent with higher court rulings that allow states to regulate but do not ban abortion before viability, the point around 24 weeks of pregnancy when a fetus can survive outside of the uterus.
Mississippi is taking what Conservative commentator Carrie Severino has called a “rip-the-Band-Aid-off” approach to the case by asking the court to drop its support for abortion rights that was spelled out in Roe and the 1992 Planned Parenthood v Casey case.
Mississippi is one of 12 states with so-called trigger laws that would take effect if Roe were rescinded and ban abortion altogether.
By a 5-4 vote in early September, the court has already authorized a ban on most abortions in Texas, although no court has yet ruled on the merits of the law.
But this vote and the Mississippi case highlight the potential risk to the court’s reputation, said David Cole, legal director for the American Civil Liberties Union. The arguments made by Mississippi were considered and rejected by the Supreme Court in 1992, Cole said.
“The only difference between yesterday and today is the identity of the judges,” he said.
Jeff Wall, a senior Justice Department attorney under Trump, said the court could dramatically expand gun rights and end the use of race in college admissions, but only abortion is likely to change the public’s perception of the court. “I still don’t think it’s going to create a groundswell in the public unless it comes with some sort of decisive abortion decision,” Wall said.
In early November, the court will challenge New York’s restrictions on carrying a firearm in public, a case that gives the court an opportunity to extend gun rights under the Second Amendment. Before Barrett joined the court, judges dismissed similar cases, due to dissent from some conservative members of the court.
Until Barrett’s arrival, some pro-gun rights judges questioned whether Chief Justice John Roberts would provide a fifth majority vote “for a broader reading of the Second Amendment,” the law professor said. George Washington University Robert Cottrol, who said he hoped the court would now expand gun rights.
More than 40 states already allow being armed in public, but New York and California, two of the most populous states in the country, are among the few to have more stringent regulations.
The case worries gun control advocates.
“An expanded Supreme Court Second Amendment ruling could restrict or prohibit the sensible solutions that have been demonstrated to end gun violence,” said Jonathan Lowy, vice president and chief counsel for the Violence Prevention Group Brady Army. Lowy included state laws requiring justification for carrying a firearm as examples of these “sane solutions.”
A Maine case gives the court another opportunity to weigh religious rights in education. The state excludes religious schools from an education program for families who live in cities that do not have public schools.
Since even before Ginsburg’s death, the court has favored complaints of discrimination based on religion and legal experts expect parents in Maine who have filed a lawsuit to be able to use taxpayer dollars in religious schools prevail, although it is not clear to what extent the court could rule.
Affirmative action is not yet on the court’s agenda, but it could still get there this term in a lawsuit over Harvard’s use of race in college admissions. The lower courts have upheld the school’s policy, but this is another case in which the change in the composition of the court could prove decisive. The court upheld race-conscious admission policies just five years ago, but that was before Trump’s three appointments accentuated the court’s conservative lean.
Among other notable cases, judges will consider reinstating the death sentence on Boston Marathon suicide bomber Dzhokhar Tsarnaev. The Biden administration is pushing for the death penalty, even as it has suspended federal executions and President Joe Biden has called for an end to the federal death penalty.
The court will also assess two cases involving “state secrets,” the idea that the government can block the release of information that it believes would harm national security if disclosed. One case involves a Guantanamo Bay detainee who, according to a lower court, was tortured while in CIA detention. The other involves a group of Muslim California residents who allege the FBI targeted them for surveillance because of their religion.
Decisions in most major cases won’t be rendered until spring, as judges typically spend months drafting and reviewing majority opinions and dissent.
At that time, Breyer could signal if he plans to retire from a job he had held since 1994. Retirement announcements often come in the spring, to give the President and Senate enough time to choose and confirm a job. candidate before the tribunal returns from its seat. summer vacation and begins to hear business again in October.
The consequences of Ginsburg’s decision to remain in court during Barack Obama’s presidency and his death while Trump was in the White House cannot be lost on Breyer, said Tom Goldstein, founder of the Scotusblog website and a frequent lawyer before the tribunal.
“It is extremely likely that he will retire this term,” Goldstein said.
The courthouse is still closed to the public, but live audio of the court’s arguments will be available and reporters who regularly cover the court will be in attendance. The lore-related court first provided live audio in May 2020, when the court began hearing arguments over the phone during the pandemic.
Judge Brett Kavanaugh will participate remotely from his home next week in oral argument after testing positive for COVID-19 despite being vaccinated. The court said on Friday that the 54-year-old was showing no symptoms.
Associated Press writer Jessica Gresko contributed to this report.