WASHINGTON — The future of abortion rights is in the hands of a conservative Supreme Court that begins a new term Monday that will also include key issues about gun rights and religion.
The court’s credibility with the public could also be at stake, especially if a divided court set aside the landmark 1973 Roe v. Wade decision, which established a woman’s right to abortion nationwide. .
The judges are returning to the courtroom after an 18-month absence due to the coronavirus pandemic, and the possible retirement of 83-year-old Liberal judge Stephen Breyer is also looming.
It is the first full term with the court in its current alignment.
Judge Amy Comey Barrett, the last of three appointees to former President Donald Trump’s Supreme Court, is part of a conservative majority of six justices. Barrett was nominated and confirmed last year during the pandemic, just over a month after the death of Judge Ruth Bader Ginsburg.
Trump and the Republicans who controlled the Senate moved quickly to fill the seat shortly before the 2020 presidential election, bringing about a dramatic shift in the court’s line-up that paved the way for a potentially law-changing term on several high-profile issues.
With abortion, guns and religion already on the agenda, and a challenge to affirmative action waiting in the wings, the court will answer an important question in the coming year, said David Strauss, a law professor at the University of Chicago. “Is this the term in which the culture wars are returning to the Supreme Court on a large scale?” said Strauss.
No problem is bigger than abortion.
The judges will hear arguments Dec. 1 in Mississippi’s bid to enforce a ban on most abortions after 15 weeks of pregnancy. Lower courts blocked the law because it contradicts Supreme Court rulings that allow states to regulate, but not prohibit, previability abortion, the point around 24 weeks of gestation when a fetus can survive outside the womb.
Mississippi is taking what conservative commentator Carrie Severino called a “rip-the-Band-Aid-off” approach to the case by asking the court to relinquish its support for abortion rights outlined in Roe and the 1992 case of Planned Parenthood v Casey.
Mississippi is one of 12 states with so-called trigger laws that would go into effect if Roe were overturned and banned abortion completely.
By a 5-4 vote in early September, the court has already passed a ban on most abortions in Texas, though no court has yet decided on the substance of the law.
But that vote and the Mississippi case highlight the potential risk to the court’s reputation, said David Cole, the legal director of the American Civil Liberties Union. Mississippi’s arguments were considered and rejected by the Supreme Court in 1992, Cole said.
“The only difference between then and now is the identity of the judges,” he said.
Jeff Wall, a top attorney for the Justice Department under Trump, said the court could greatly expand gun rights and end the use of race in college admissions, but abortion alone is likely to change public perception of the court. “I still don’t think this is going to cause a tidal wave in the public unless it’s accompanied by some sort of turning point over abortion,” Wall said.
In early November, the court will challenge New York’s restrictions on carrying a gun in public, a case that gives the court an opportunity to expand gun rights under the Second Amendment. Before Barrett came to court, the judges dismissed similar cases because of the dissenting opinions of some conservative members of the court.
Before Barrett came, some judges advocating gun rights questioned whether Chief Justice John Roberts would give a fifth majority vote “for a more comprehensive reading of the Second Amendment,” said Robert Cottrol, a law professor at George Washington University, who said that he hoped the court would now extend gun rights.
More than 40 states already make it easy to be armed in public, but New York and California, two of the country’s most populous states, are among the few with stricter regulations.
The case worries gun control advocates.
“A comprehensive Second Amendment Supreme Court ruling could limit or prohibit sensible solutions that have been shown to end gun violence,” said Jonathan Lowy, vice president and chief adviser at the gun violence prevention group Brady. Lowy included state laws requiring justification for carrying a gun as examples of such “sensible solutions.”
A Maine case gives the court another chance to weigh up religious rights in education. The state excludes religious schools from a curriculum for families living in cities that do not have public schools.
Because even before Ginsburg’s death, the court favored religion-based discrimination claims and the expectation among legal experts is that parents in Maine who sued to use tax dollars in religious schools will prevail, although it’s not clear. how wide the court could be. rule.
Affirmative action isn’t on the court’s agenda yet, but it could come this term in a lawsuit over Harvard’s use of race in college admissions. Lower courts maintained the school’s policy, but this is another case where the change in court composition could be decisive. The court upheld the race-conscious admissions policy just five years ago, but that was before Trump’s three nominations emphasized the court’s conservative inclination.
Among other notable cases, the judges will consider reintroducing the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. The Biden administration is pushing for the death penalty, even though it has suspended federal executions and President Joe Biden has called for an end to the federal death penalty.
The court will also weigh two cases involving “state secrets,” the idea that the government can block the release of information it believes would harm national security if made public. One case concerns a Guantanamo Bay detainee who was tortured in CIA custody, according to a lower court. The other concerns a group of Muslim residents in California who claim the FBI targeted them for surveillance because of their religion.
Decisions in most major cases won’t come before spring, as judges typically spend months drafting and reviewing majority views and dissent.
Around that time, Breyer could indicate whether he plans to retire from a job he’s held since 1994. Retirement announcements often come in the spring, to give the president and Senate enough time to elect and confirm a candidate before the court returns from office. summer vacation and starts handling cases again in October.
Breyer cannot escape the ramifications of Ginsburg’s decision to remain on court during Barack Obama’s presidency and her death while Trump was in the White House, said Tom Goldstein, the founder of the Scotusblog website and a frequent advocate. before the court.
“It is overwhelmingly 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 reporting regularly on the court will be in attendance. The tradition-bound 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 in pleadings remotely from his home next week after testing positive for COVID-19 despite being vaccinated. The court said Friday that the 54-year-old judge has no symptoms.
Associated Press writer Jessica Gresko contributed to this report.