It’s opening day for the most important court in the land, the U.S. Supreme Court. While there might not be a marching band present to usher in the first day of the new term on Monday, there will surely be some fireworks this Supreme Court season.
This year we barely had time to miss the Supreme Court. Typically, justices sign our yearbooks in June with a perfunctory “HAGS!” (Have a Great Summer!) and disappear for months as they give well-paid speeches in far-off places. This year, they stuck around, busying themselves with many so-called shadow docket decisions. They allowed Texas’ restrictive abortion law to go into effect and gave a big thumbs down to President Joe Biden’s attempt to extend the federal eviction moratorium and to his effort to end former President Trump’s “Remain in Mexico” policy.
Now they return to their regularly scheduled programming. They’ve already set oral arguments in a number of key cases that could reshape our legal and political landscape and exacerbate society’s existing fault lines.
On Dec. 1, the court will hear arguments about the constitutionality of Mississippi’s law, which bans almost all abortions after 15 weeks of pregnancy. The law is at odds with current Supreme Court precedent, set almost 30 years ago in a case called Planned Parenthood v. Casey, in which the court upheld the “essential holding” of its landmark decision in 1973 in Roe v. Wade. The Casey court held that once a fetus is viable, states can ban abortions, but pre-viability, states can only implement restrictions that do not present an “undue burden” on a woman’s ability to obtain an abortion.
Because fetal viability typically begins at about 24 weeks of pregnancy, there seems to be no way to honestly square Mississippi’s law banning abortions at 15 weeks of pregnancy, with the Casey standard. Twenty-four weeks is more than 15 weeks, and a ban is more than an undue burden. By agreeing to review Mississippi’s abortion law, at least four members of the court have almost certainly signaled that they’re comfortable overturning Roe and Casey. That number is likely closer to six, the same number that voted to allow Texas’ abortion law to remain in effect.
On Nov. 3, the court will hear arguments in the second most controversial and consequential question facing justices this term: whether the state of New York can mandate that people who want to obtain a license to carry a concealed gun show good reason, such as self-defense.
The Supreme Court, much to the chagrin of some of its more conservative justices, has largely shied away from taking big Second Amendment cases since it struck down a District of Columbia law in 2008 that banned the carrying of unregistered handguns and barred the registration of handguns, but allowed the chief of police to issue one-year licenses for handguns. The D.C. law also required that people who legally own registered firearms keep them in a nonfunctional state (for instance by binding them with trigger locks) in the home. Justice Antonin Scalia, writing for a majority of the court, famously concluded that the Second Amendment includes an individual right to bear arms, as opposed to a right given only to the militia, and that this right includes the ability to own a functional gun in one’s home for self-defense.
The court’s decision in the gun case it will hear Nov. 3 will tell us how much power states have to restrict a person’s ability to carry a gun outside of the home. In addition to New York, California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island also place restrictions on the carrying of concealed weapons outside the home. All of those laws could be on the chopping block.
The court will be addressing much more than abortion and gun control this term.
On Wednesday, the court will consider whether the government can prevent a prisoner at Guantánamo Bay from obtaining information in a suit against CIA contractors who tortured him. The legal issue in the case is whether the government can use the “state secrets” privilege to prevent the release of national security information. The court’s decision could affect other pending cases, such as the separate case of five men being charged in the U.S. Military Tribunal at Guantánamo Bay for aiding the men who perpetrated the Sept. 11 attacks.
A week later, on Oct. 13, the court will hear arguments in a case concerning Dzhozhar Tsarnaez, who, along with his brother, is one of the two Boston Marathon bombers. Tsarnaez’s death sentence was thrown out by an appeals court because the trial court failed to ask potential jurors about the media coverage they had consumed about the case and excluded evidence from the sentencing phase about his brother’s involvement in a separate murder case. The Supreme Court will determine if the death sentence should be reinstated.
November will be First Amendment month at the Supreme Court as justices hear one case addressing the freedom of religion and two dealing with the scope of the free speech clause. On the first of that month, the court will hear the case of death row inmate John Ramirez, who claims, in part, that he has a constitutionally protected right to have his Baptist pastor put his hands on him and pray out loud while he is put to death. Texas has thus far denied those requests. The previous cases to reach the court in this area address whether a death row inmate can have a spiritual advisor present in the execution chamber, not what actions that advisor can take once inside.
On Thursday the court agreed to hear a challenge filed by a Christian group, Camp Constitution, against the city of Boston. Camp Constitution wanted to use a City Hall flag pole to raise its flag, which bears a Latin cross. “What about the separation of church and state?” you ask. Well, Camp Constitution complains that Boston allows tons of other groups to use its flag poles, such as those celebrating gay pride and Juneteenth. Both lower courts to review the case ruled in favor of the city.
In a case regarding the free speech clause of the First Amendment, on Nov. 2, the court will consider the Houston Community College System’s Board of Trustees public censure of one of its members for things he said about the other board members. That member claimed the censure violated his First Amendment rights, a claim the federal district court dismissed, finding that the censure was no more than a “statement” of the board’s dissatisfaction. The court of appeals disagreed. The case asks more broadly whether a local elected body has the power to censure one of its members as a result of that member’s speech.
And there is another yet-to-be-scheduled case dealing with the free speech clause, this one addressing the ever-expanding problem of money and politics. When Texas Sen. Ted Cruz loaned money to his re-election campaign in 2018, he admits he did so to challenge a federal law that caps at $250,000 the amount of money candidates can raise post-election to repay their personal loans to the campaign. Cruz loaned his campaign $260,000 the day before the election and wants to be able to raise money after the election to pay back his full $260,000 loan. He says the law violates the First Amendment by burdening political speech without a sufficient reason. The government says the law is necessary to prevent corruption or the appearance of corruption that could occur when candidates fundraise after the election to help retire their personal debts to the campaign.
This is the Supreme Court’s first full term with its new list of players and a solid six-to-three conservative majority. Justice Amy Coney Barrett was sworn in a few weeks after last year’s term began.
Only fools make predictions, so here we go. Ten months from now, when the court’s term ends, Roe and Casey will no longer be the law of the land. They will either be expressly or implicitly eviscerated. States will no longer possess the authority to restrict people’s ability to carry concealed weapons outside the home, or that authority will be severely narrowed. Cruz, and his colleagues, will be able to raise as much money as they want after an election to repay their personal loans to their campaigns.
There are other consequential cases that the court will consider that could change our understanding of the contours of the First Amendment and the state secrets privilege. But if the only two cases the court heard all term were the abortion and gun control cases, we can already predict that thanks to at least five people in a country of almost 330 million, our world is about to look a lot different.