Washington — The Supreme Court is slated to return to the bench for the start of its new term on Monday, with the justices set to take up politically divisive cases involving the Second Amendment, religious liberty and abortion, all while battling bruised public perception of the high court’s legitimacy.
The justices will convene for in-person arguments in the court’s stately courtroom for the first time since the start of the coronavirus pandemic in March 2020, though they’ll take the bench before a limited audience due to public health concerns.
In the first months of its new term, the court will tackle a trio of high-profile disputes involving politically charged issues. The contentious battles will further clarify whether the Supreme Court’s expanded conservative majority intends to issue sweeping decisions or opt for incremental change in areas that significantly impact Americans’ lives, as well as whether fissures emerge among the six conservative justices.
“This term will shed additional light on whether the more conservative side of the court is going to operate as a bloc or whether we’re going to see nuances and distinctions among those six justices in terms of how far they’re willing to go and how quickly,” Roman Martinez, a partner at Latham & Watkins who argues before the court, told CBS News.
The court is still adding cases to its docket, but it’s already scheduled to hear disputes over gun rights and abortion. Also awaiting action is a bid from Asian-American students challenging Harvard University’s admissions policies, though it could be months before the justices decide whether to wade into a debate over affirmative action.
Looming over the new term is the ongoing political debate over the Supreme Court’s structure, which some court watchers warn could curb its independence. Democrats have ramped up their campaign to add seats to the nine-member court to dilute the conservative majority, and President Biden’s Commission on the Supreme Court is poised to issue a report in November on proposed reforms such as court expansion and term limits for justices.
“The Supreme Court is an extremely important institution in our constitutional system,” Martinez said. “It’s important for the court to be independent and insulated from political pressure, and I worry that this campaign of delegitimizing the court is really trying to lay the groundwork for a political move that would curtail the court’s independence.”
The weighty issues slated for consideration by the Supreme Court, coupled with questions about its credibility and attacks on its legitimacy, have only heightened scrutiny of the court as the nine justices return to the bench.
“This is not a term where they’re going to be able to duck the very divisive issues,” Allison Orr Larsen, a professor at William & Mary Law School, told CBS News. “They have to confront them head on.”
Second Amendment
Seated from left: Justice Samuel Alito, Justice Clarence Thomas, Chief Justice John Roberts, Justice Stephen Breyer and Justice Sonia Sotomayor. Standing from left: Justices Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett. Photo taken April 23, 2021.
ERIN SCHAFF/POOL/AFP via Getty Images
On November 3, the justices will hear arguments in a case over whether the Second Amendment allows for the right to carry a gun outside the home for self-defense.
The legal battle centers around New York’s licensing regime for carrying concealed handguns in public, which has been upheld by lower courts. In order to obtain a license to carry a firearm in public there, an applicant must demonstrate a “proper cause” and “special need for self-protection distinguishable from that of the general community.” Two New York residents who were denied concealed carry licenses challenged the state’s framework, arguing it was an unconstitutional infringement of the Second Amendment.
But New York Attorney General Letitia James has said the law “is consistent with the historical scope of the Second Amendment” and advances the state’s interests in public safety and crime prevention.
The Supreme Court has declined to meaningfully wade into the gun rights debate since decisions in 2008 and 2010, which established the right to keep firearms in the home for self-defense.
Larsen said even if the court issues a narrow decision in the case, or allows some limits on the right to carry a firearm in public, the conservative justices will likely include language that strengthens Second Amendment rights.
“If the court holds the Second Amendment protects the right to carry a gun outside the home, that will be a very clear sign they are quite serious of the right they articulated in Heller, and they’re ready to get back in the business of elaborating on it,” she said, referencing the 2008 decision in Heller v. District of Columbia.
The Supreme Court is also being asked to take up a challenge to a New Jersey gun law that prohibits people from having magazines that can hold more than 10 rounds of ammunition, though the court could hold onto the case until it issues a decision on carrying in public.
Abortion
Abortion rights activists march to the house of Supreme Court Justice Brett Kavanaugh in Chevy Chase, Maryland, on September 13, 2021, following the court’s decision to uphold a stringent abortion law in Texas.
NICHOLAS KAMM/AFP via Getty Images
The most-watched case on the Supreme Court’s merits docket this term is a bid by Mississippi to enforce a law banning abortions after 15 weeks, in which the justices will hear arguments December 1.
The abortion dispute is the most significant to come before the justices since the 1992 decision in Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade and said state regulations cannot impose an “undue burden” on a woman seeking an abortion before viability, generally considered to be 22 to 24 weeks into pregnancy.
In their petition with the Supreme Court filed last summer, Mississippi officials said the questions presented by their case “do not require the court to overturn Roe or Casey,” but rather ask the court to “reconcile a conflict in its own precedents.”
But after the Supreme Court agreed in May to hear the case, Mississippi officials asked the court to overrule Roe and Casey outright, arguing they are “egregiously wrong” and have “proven hopelessly unworkable.”
“Overturning precedent is always a major deal,” Martinez said, “and I think all nine justices think very carefully and seriously before overturning precedent. They approach it in slightly different ways, but all recognize it’s a big deal. There’s always going to be a powerful gravitational pull in favor of deciding something more narrowly.”
Abortion rights advocates worry a decision in favor of Mississippi could pave the way for more Republican-led states to pass laws limiting abortion access and argued in a filing with the court that the state is requesting it “scuttle a half-century of precedent and invite states to ban abortion entirely.”
Larsen, meanwhile, predicted even the court’s conservative justices who oppose Roe could still be looking for an off-ramp in the case, or incremental ways to narrow the holding of Roe and Casey rather than overturning them altogether.
To accomplish that, she said the court can either narrow or eliminate the viability line, or give states more leeway to legislate in areas of “medical uncertainty,” which would allow for more restrictions on the procedure.
Larsen also said the change in position by Mississippi officials in their filings — to now asking for Roe to be overturned — warrants dismissal of the case.
“The decision to reconsider precedent is a significant one. It can have substantial consequences for both the country and the court as an institution, so this court has never undertaken the task lightly,” Larsen and a group of law professors argued in a filing with the high court. “Given these stakes, the court should not consider overturning nearly half a century of precedent when that issue was not properly raised in the petition for certiorari.”
Also pending before the court are requests for the justices to hear cases involving laws from Arkansas and Missouri that prohibit abortions performed because the fetus may have Down syndrome, as well as a New York regulation requiring employer health insurance plans to cover abortions.
A challenge to a Texas law banning abortions after roughly six weeks, the most restrictive in the nation, has also landed back before the Supreme Court after it split 5-4 in declining to block the measure earlier this month. Abortion providers are now asking the justices to immediately review their case before a lower court rules, fast-tracking their challenge.
Religious liberty
Religious groups have tended to fare well at the Supreme Court in recent years, and that trend is expected to continue this term with a religious liberty case involving a Maine tuition assistance program.
At issue in the legal battle is whether the state violates the Constitution by prohibiting students participating in a student-aid program from using that assistance to attend schools that provide religious instruction.
Kannon Shanmugam, a Supreme Court litigator and partner at Paul, Weiss, Rifkind, Wharton & Garrison, said the dispute is the “most significant First Amendment case” on the court’s docket this year. It, along with the gun rights and abortion cases, hits on the areas of constitutional law that “in many ways tell us the most about how justices look at the law,” he said.
“Particularly with three new members on the court in the last four years who have had relatively limited ability to opine on those issues, this term is going to tell us a lot just based on those three cases alone,” he said during a preview of the term hosted by the Federalist Society last week.
Death penalty
This file photo released April 19, 2013, by the Federal Bureau of Investigation shows Dzhokhar Tsarnaev, convicted for carrying out the April 15, 2013, Boston Marathon bombing attack that killed three people and injured more than 260.
FBI via AP
The court is also slated to weigh the fate of Boston Marathon bomber Dzhokhar Tsarnaev, whose death sentences were invalidated by a lower court last year over issues with jurors’ pretrial media exposure.
The Justice Department under President Biden is urging the high court to reinstate the death penalty sentences for Tsarnaev, who was convicted in 2015 for his role in the 2013 bombing at the Boston Marathon.
The justices also added to its docket the case of a Texas death row inmate, whose request to have his pastor lay hands on him and audibly pray over him during his death was denied. The high court blocked the execution of inmate John Henry Ramirez and set the case for oral argument on November 1.
Retirement pressure
Justice Stephen Breyer sits during a group photo of the justices at the Supreme Court in Washington, D.C., on April 23, 2021.
ERIN SCHAFF/POOL/AFP via Getty Images
Progressive groups have continued their campaign to pressure Justice Stephen Breyer, the senior member of the court’s liberal bloc, to retire and allow Mr. Biden to name a successor while Democrats hold narrow control of the Senate.
Breyer rebuffed calls to step down last term, but Tom Goldstein, who founded SCOTUSblog and argues before the court, said last week it’s “overwhelmingly likely” the 83-year-old will retire when the new term ends in June.
“The justices are aware of the political cycles,” he said during the Federalist Society event.
Breyer, with Justices Clarence Thomas and Amy Coney Barrett, has been vocal in defending the court amid the dip in its public approval, using public appearances to dispel the notion that the justices are politicians in robes.
While some believe the Supreme Court is facing threats to its legitimacy, Goldstein said it has “built up an enormous font of public respect.”
“I don’t see any danger whatsoever, essentially no matter what the court does, of the public kind of abandoning the institution as one that they will regard as legitimate,” he said.
