The Supreme Court is aiming higher.
The Supreme Court is aiming higher.
T he Supreme Court is in its annual summer recess after finishing up a term that had some big cases, but few true blockbusters. The term that starts in October will be different. Indeed, by the time the Court goes home at the beginning of July 2022 we may well have seen its biggest term since at least 2015 and maybe longer. Just take a look at what issues are already on the docket, which include abortion, guns, religious school choice, the death penalty, and terrorism. It could also add a huge case on affirmative action.
Big issues do not always yield big decisions, of course. Conservative judges in particular tend to come from a legal culture and a judicial philosophy that hesitates at taking sweeping, dramatic leaps. But several of these cases are framed in a way that will invite major, high-profile rulings. That undoubtedly reflects, at least in part, the litigation strategies of conservative activists. This will be the first term of the Court in which most of the petitions bringing cases for the Court’s review were filed after Justice Amy Coney Barrett replaced Ruth Bader Ginsburg. Activists are eager to see how far the Court’s 6–3 majority is willing to go.
Here are some of the cases the Court will be hearing, from the blockbusters to the headline-grabbing fact patterns to the sleeper issues:
Dobbs v. Jackson Women’s Health Organization: Dobbs is the biggest possible Supreme Court case: a direct challenge to Roe v. Wade. The Mississippi law that was struck down by the Fifth Circuit in Dobbs bans abortions after 15 weeks except “in a medical emergency or in case of a severe fetal abnormality.” The petition asks the Court to decide “whether all pre-viability prohibitions on elective abortions are unconstitutional.” As I’ve explained previously, while the incrementalists on the Court would doubtless prefer to chip away at Roe gradually and clear more space for state regulation of abortion, Dobbs involves a flat ban of some abortions, and thus calls the Roe framework directly into question. It will be difficult to uphold the Mississippi law without openly rejecting Roe, and it will be difficult to affirm the Fifth Circuit without further entrenching Roe.
New York State Rifle & Pistol Association Inc. v. Corlett: The Court returns to the Second Amendment for the first time in just over a decade to decide a challenge to New York’s restrictive concealed-carry rules. The state requires a showing of particular need in order to get a concealed-carry permit — a requirement that in practice makes it nearly impossible to carry a concealed gun legally. The Court has never decided the scope of the right of those who keep arms to bear them in public.
Carson v. Makin: The Court’s 2020 decision in Espinoza v. Montana Department of Revenue struck down Blaine amendment bans on allowing students to use school-choice funds to attend religious schools. But the case turned on the schools’ religious status, not the religious use of a religious education. Can states still ban students from using state money in schools that teach religion? Carson asks that follow-up question: “Does a state violate the Religion Clauses or Equal Protection Clause . . . by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction?”
United States v. Tsarnaev: The younger of the two Boston Marathon bombers, Dzhokhar Tsarnaev, is challenging his death sentence, mainly on the grounds that the jury was not adequately screened to protect him from the pretrial publicity caused by the fact that he bombed the Boston Marathon.
Cameron v. EMW Women’s Surgical Center: Dobbs is not the only abortion case, although Cameron is only indirectly about abortion. The Kentucky attorney general’s office was representing the state’s Health and Family Services secretary in defending Kentucky’s partial-birth abortion ban in federal court until the new secretary — appointed by then-incoming Democratic governor Andy Beshear — dropped the state’s defense of the statute. Kentucky’s Republican attorney general, Daniel Cameron, contends that he could intervene to continue the defense. The issue of who can defend state statutes that are out of fashion with Democratic officials is a recurring one; it turns partly on state-law questions that are outside the Court’s jurisdiction, but it also involves questions of standing and the right to intervene in federal cases.
Houston Community College System v. Wilson: The petition in Houston Community College asks, “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?” The Constitution offers a partial answer to that question for members of Congress in the speech and debate clause, but the Court has yet to fully answer it for other legislative bodies such as the Houston Community College System Board of Trustees. The respondent, who was suspended from some of his duties and benefits over public speeches and lawsuits, argues that he can be censured only for his official conduct as a board member, not for outside political activity.
U.S. v. Zubaydah: Yes, this is case brought by Abu Zubaydah, the Al-Qaeda detainee who was captured in Pakistan in 2002 and repeatedly water-boarded; he is now held at Guantanamo Bay. He is pursuing discovery in American courts in aid of a proceeding in Poland over interrogation techniques used by CIA contractors. The Ninth Circuit refused to block discovery under the “state secrets” doctrine. A second case, Federal Bureau of Investigation v. Fazaga, involves whether the state-secrets doctrine bars courts from reviewing materials in lawsuits over Foreign Intelligence Surveillance Act wiretaps, where the Court would be able to review the same evidence in secret if it were ruling on a FISA warrant.
U.S. v. Vaello-Madero: The Court is asked to decide whether it violates the equal-protection clause to have welfare and entitlement programs in the United States that do not apply to Puerto Rico. (Another petition still pending asks whether Congress has the power to ban cockfighting in Puerto Rico under its power to regulate interstate commerce.)
American Hospital Association v. Becerra: A technical Medicare case involving reimbursement rates to hospitals, but one that yet again asks the Court to wade into the hotly contested scope of the Chevron doctrine of deference to administrative agencies in their reading of federal laws.
Not Done Yet
If that list isn’t enough — and the docket already includes a bunch of other notable cases of interest to particular areas of criminal, commercial, and immigration law — there is still room on the docket for more. There could well be contests over redistricting, which will mostly be taking place this fall and next spring, although the Court may not be eager to jump into those quickly. There are cases still bubbling up over COVID, including one currently at the Eleventh Circuit over Ron DeSantis’s battle to prevent Norwegian Cruise Lines from requiring passengers to be vaccinated. There are still big issues that some justices want to see revisited, such as qualified immunity, that are presented by a regular stream of petitions.
Then there are petitions that have already been filed and might be added to the docket. The biggest one is Students for Fair Admissions v. President and Fellows of Harvard College, the case challenging Harvard’s use of racial preferences to discriminate in admissions against Asian Americans. The petition explicitly asks if the Court “should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions,” revisiting after 18 years a question that Justice O’Connor, in Grutter, said should be revisited after 25. The Court in June asked the Biden administration to file a brief with its position on the case, a step that often signals enough interest that the Court is likely to take a case.
Other cases in which the Court has called for the solicitor general to submit briefs include Montana and Wyoming v. Washington, a commerce-clause challenge to Washington’s ban on Montana and Wyoming coal shipping from Washington’s ports, and Torres v. Texas Department of Public Safety, involving whether Congress can use its war powers to subject states to lawsuits.
In Rutledge v. Little Rock Family Planning Services, Arkansas asks “whether the Fourteenth Amendment bars States from prohibiting abortions that are sought solely because of a prenatal diagnosis of Down syndrome.” The Eighth Circuit struck down the ban, and the Court seems likely to let the petition be decided by the outcome in Dobbs. Adding a case on the discriminatory use of abortion, however, would add another angle to the Dobbs debate. Schmitt v. Planned Parenthood of the St. Louis Region presents the same question, but coming from Missouri. The Republican attorneys general of Arkansas and Missouri are in hotly contested primary campaigns for governor and senator (respectively) in 2022, so the strategy behind these petitions is not purely legal in nature.
The last big decision we can expect by the end of the term is the potential retirement of Justice Stephen Breyer. Breyer keeps saying that he likes his job and has no retirement plans, much to the fury of liberals and progressives who want to ensure that he — who turns 83 in August — can be replaced while the Democrats still hold both the White House and the Senate. If things are looking grim for the Democrats’ tenuous 50–50 majority in the Senate by next spring, expect pressure to mount on Breyer to retire ahead of the 2022 midterms (a traditional time for Supreme Court retirements and replacements).
Stay tuned.