What's Left at SCOTUS and Why You Should be Very Afraid
By Eric Segall
As of this morning, the Supreme Court has 20 cases left to decide. This week the Justices will issue opinions on Tuesday and Thursday. The Court usually finishes its business by the last day of June but there is no hard and fast rule about that. Although many of these cases are certainly important, here's my list of the five most critical ones, and a brief discussion about each one.
1. Dobbs v. Mississippi
Unless you have been living under a rock, you already know that Dobbs involves a 15-week abortion ban and that Justice Alito's draft opinion upholding the ban and returning all issues concerning abortion to the states was leaked over a month ago. The draft explicitly reversed Roe v Wade and Planned Parenthood v Casey. This blog has comprehensively covered the leaked opinion, its monstrous tone, and its erasing of women's rights and considerations from the abortion discussion.
I expect the tone of the opinion to change dramatically but the result to stay largely the same. As someone who had long felt that Roe and Casey were wrongly decided, I now believe that I overlooked an incredibly important part of the issue--namely, that Roe, in addition to of course being about abortion, was also a strong symbol of the movement towards gender equality in this country. I fear that its reversal will place a huge barrier in the way of that movement.
However, it is also true that the Court will do nothing (at least this term) that makes abortion illegal or that prevents the states or Congress from protecting abortion rights. The political arena is where the battle most likely now must be fought. Being pro-choice all the way down, I hope we fight that battle hard and with every tool we can, including strong civil disobedience all the way up to but definitely not crossing the line of violence.
Women cannot be equal in this country unless they have full control over their reproductive choices. That needs to be the ultimate goal and it is one that we cannot expect the courts to protect anytime in the near future.
2. New York Pistol & Rifle Association v. Bruen
This case presents a Second Amendment challenge to a 108-year-old New York law that requires a special permit before someone may legally carry a concealed handgun. The Court has not issued an important Second Amendment opinion since 2010. It shouldn't this year either for a number of reasons.
First, the New York law has a long historical pedigree and is not too different from many other gun laws that have been on the books since the Founding.
Second, given the spate of tragic gun shootings in recent months, it would be a terrible time for the Court to issue a strong guns rights opinion. And yes, the Justices read, or used to read, the headlines.
Third, the facts of this case are quite blurry, as Chief Justice Roberts himself seemed to recognize at oral argument. We really don't know how this law is implemented in New York, whether, as one would expect, it is much easier to get a permit in rural New York than Manhattan, or how many permits have been requested over the last few year years, how many were granted or denied, etc. In short, the record is a mess.
In any sane world, the states would be left to work out the balance between alleged gun rights and gun control laws. What works in upstate New York may not work in Brooklyn but if New York wants a one size fits all regime, it should be allowed to use that approach. There is no constitutional issue in this country more sensitive to local conditions than finding the right balance between public safety and gun rights. What is effective in Montana, Los Angeles, rural Massachusetts, and Columbus, Ohio might vary considerably. Leaving aside the remote possibility that Congress might pass meaningful gun reform, there is no need for the Justices to get involved in these hard, local questions. Over 40 states protect gun rights; we simply don't need the Justices to do the same, at least not with respect to state laws.
I expect a narrow and divided ruling or maybe even a hold over to next term. But, of course, that prediction is worth as much as you paid for it.
3. West Virginia v. EPA
This quite complicated administrative law case isn't even a case and in a world where law mattered to the Supreme Court, the Justices wouldn't decide it. Here is a summary from Amy Howe of SCOTUSBlog:
All of that applies to this case as well. Maine should be allowed to assist parents who want to send their children to public or secular private schools without being constitutionally required to help parents of kids attending schools that proselytize or teach religion. Allowing the government to refuse to use taxpayer money to fund religion was absolutely part of the First Amendment's original meaning. But do not expect originalism to carry the day here because in the Roberts Court religion is The Trump Card.
My advice for this case and all the rest is to hope for the best but expect the worst.