For the first time in more than a year, the Supreme Court will convene in its crimson velvet-lined majestic chamber Monday to begin a new term and hear some of the most divisive issues of the day at a time when the Court’s institutional legitimacy is under attack and the majority of the public doesn’t approve of the job the justices are doing.
In the coming months the nine – six appointed by Republican presidents and three by Democrats – will tackle abortion, the Second Amendment, religious liberty and perhaps even affirmative action, all the while fending off calls from liberal interest groups to change the court’s makeup.
Several of the justices have even begun an unusual campaign in recent weeks to convince the public that they are not – as Justice Amy Coney Barrett said – “partisan hacks,” but are simply divided by their judicial philosophies.
The public appearances come as a deeply divided court, in a late summer order, allowed a Texas six-week abortion ban go into effect, rendering 50-year-old Supreme Court precedent a dead letter in the country’s second largest state and raising questions about whether the court is poised to gut Roe v. Wade.
In an appearance on Thursday, Justice Samuel Alito rejected criticism concerning how the justices dealt with the dispute that came up on its emergency docket, sometimes referred to as the “shadow docket.” Alito took particular aim at those who use the term “shadow docket,” which he said wrongly suggests that the court was doing something “sinister and threatening.” Alito did not address, however, some of the same criticism that came from his own colleague, Justice Elena Kagan, who used the phrase when she dissented from the Texas order.
All of the justices – except for Justice Brett Kavanaugh, who has tested positive for Covid – are expected to be on the bench Monday. It will mark Barrett’s first full term on the court, and potentially the grand finale for Justice Stephen Breyer if he retires next spring. Last term ended with a lurch to the right in two of the most politically charged cases of the term when the justices split 6-3, and highlighted, once again, the impact of former President Donald Trump’s three nominees.
“I think we may have come to a turning point,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown Law Center. “If within a span of two to three terms, we see sweeping right side decisions over left side dissents on every one of the most politically divisive issues – voting, guns, abortion and affirmative action – the perception of the court may be permanently altered.”
Unlike most years, the court did not have its usual summer recess this year, a time when the justices normally flee Washington and stay under the radar. Instead, the court was peppered with significant emergency applications that came to them without the benefit of a full briefing schedule or oral arguments.
Over the summer they invalidated President Joe Biden’s so-called eviction moratorium, and blocked his attempt to end a Trump-era asylum policy. Barrett, acting alone, cleared the way for Indiana University’s vaccine mandate to go into effect. Justice Sonia Sotomayor, last week, did the same for the vaccine mandate in New York City schools.
Most notably, however, on September 1, a 5-4 court allowed Texas’ controversial six-week abortion ban to go into effect pending appeal.
That decision exploded onto the political sphere prompting a renewed call from the left to add justices onto the bench in what critics call a modern-day court packing scheme.
Abortion: Mississippi’s law a direct challenge to Roe v. Wade
The Texas order came after the Supreme Court had already agreed to hear the most important abortion dispute in some 30 years, a direct challenge to Roe v Wade. The case – to be argued on December 1 – concerns Mississippi’s 15-week abortion ban.
Lawyers for Jackson Women’s Health Organization are asking the Supreme Court to invalidate the law, and uphold Roe, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy. In briefs they highlight the fact that if the court were to gut the watershed decision, critics would say that the ruling came only because of a change in the court’s membership.
“Unless the Court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” wrote Julie Rikelman of the Center for Reproductive Rights.
Mississippi’s “Gestational Age Act,” passed in 2018 and since blocked by two federal courts, allows abortion after 15 weeks “only in medical emergencies or for severe fetal abnormality” and has no exceptions for rape or incest. If doctors perform abortions outside the parameters of the law they will have their medical licenses suspended or revoked and may be subject to additional penalties and fines.
The state’s attorney general has argued that Roe v. Wade was “egregiously wrong” and should be overturned .
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition” state Attorney General Lynn Fitch told the justices in a brief over the summer.
Fitch said the case for overruling Roe is “overwhelming.”
A district court blocked the law in a decision affirmed by a federal appeals court.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” a panel of judges on the 5th US Circuit Court of Appeals said in December 2019. “States may regulate abortion procedures prior to viability so long as they do not ban abortions,” the court held and concluded that “the law at issue is a ban.”
Second Amendment: Challenge to NY concealed carry law
The justices will hear an historic case concerning the scope of the Second Amendment’s right to keep and bear arms on November 3.
Back in in 2008 in District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self-defense. Except for a follow-up decision two years later, the justices have largely stayed away from the issue – infuriating gun rights advocates and even some of the justices themselves.
Now the focus will be on Trump’s nominees, particularly Kavanaugh and Barrett, who signaled when they served on the lower courts that they think the court should change the way it evaluates gun regulations. Others such as Justice Clarence Thomas have made clear they believe lower courts have been thumbing their noses at the Heller decision. Thomas has said, for instance that he believes the “2nd Amendment is a disfavored right in this court.”
The new case, New York State Rifle & Pistol Association v. Bruen, concerns a New York law governing licenses to carry concealed handguns in public. It requires a resident to obtain a license to carry a concealed pistol or revolver and demonstrate that “proper cause” exists for the permit. Residents must show that they have a great need for the license and that they face a “special or unique danger to their life.”
The 2nd US Circuit Court of Appeals held that New York’s law does not violate the Second Amendment.
“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” New York state Attorney General Letitia James told the Supreme Court.
In a brief, James wrote that the law requires applicants who want to carry a handgun in public without restriction to show an “actual and articulable—rather than merely speculative or specious—need for self-defense.” In short, James argues that the state has a right to regulate when it comes to conceal carry in areas frequented by the public.
She warned that a ruling in favor of challengers would “jeopardize the firearm restrictions that all States and the federal government have adopted to protect the public in sensitive places where people typically congregate” like courthouses, airports, subways and schools.
The Biden administration supports New York, and told the court in a friend of the court brief that while the Second Amendment protects an individual’s right to keep and bear arms, the right is “not absolute.”
“For centuries, lawmakers have protected the public by reasonably regulating such matters as who may possess arms, where they may be taken, and how they may be manufactured, transported, sold, stored, and carried,” acting Solicitor General Brian H. Fletcher wrote.
The petitioners in the case are Robert Nash, Brandon Koch and the New York State Rifle and Pistol Association. They are represented by Paul Clement, who served as solicitor general under President George W. Bush.
He argued that while the right to keep and bear arms may have its greatest application in the home, “the right to carry arms obviously extends outside the home” and is “intimately connected to the right to self defense.”
Both challengers have passed all the required background checks and have obtained licenses to carry guns for hunting and target practice, but they have not been able to establish a special need for self defense that is required under the law in order to receive an unrestricted license.
Clement said that the law makes it almost impossible for an ordinary individual to obtain a license because the “proper cause” standard is so demanding and left to the “broad discretion” of the licensing officer.
“Good, even impeccable, moral character plus a simple desire to exercise a fundamental right is not sufficient,” Clement wrote. “Nor is living or being employed in a high crime area.”
Religious liberty: School vouchers in Maine
In recent years the conservatives on the court have moved for greater protections under the Free Exercise Clause of the Constitution and on December 8, they will hear a new case concerning a tuition assistance program out of Maine.
Parents in some rural areas of the state with no school district receive vouchers so that they can send their kids to private schools – including those with religious affiliations. The aim of the program, the state argues, is to give students an education that is roughly equivalent to what they would have had, if there had been a public school in their area.
But the state draws the line at religiously affiliated schools that not only teach academic subjects but also present the material through the lens of his faith. In legalese, the distinction is between a religious schools’ “status” and “use.”
In recent years the court has ruled in favor of public funds going to schools even if they have a religious identity or status. In 2017, the court determined that a state could not restrict funds for resurfacing playgrounds to a church-owned preschool. Last year, the court held that the state could not block public funds based solely on the religious status of the school.
But a lower court upheld Maine’s current program because it said it was not excluding schools based on their status, but, instead, it was based on the fact that the public funds would be used for religious instruction.
The lawsuit was brought by David and Amy Carson as well as other parents. The Carsons sought to send their child to Bangor Christian School, a private school that, the parents said, aligned with their Christian beliefs. The school has a mission of “instilling a Biblical worldview” in its students and sees that Bible as the “final authority in all matters.” It does not hire teachers who are members of the LGBTQ community.
They argue that the 1st US Circuit Court of Appeals was wrong to uphold Maine’s tuition assistance program because it violated the Free Exercise clause.
“Discrimination is discrimination, whether the government claims to target those who are religious or those who do religious things,” their lawyers argued in court papers.
Maine Attorney General Aaron M. Frey says funds are provided to nonsectarian schools—including to religious organizations that provide nonsectarian education. “Maine is declining to fund explicitly religious activity that is inconsistent with a free public education,” Frey said.
Death penalty: Presence of spiritual adviser
On November 1 the justices will dive back into an issue that has divided them in the past: the presence of spiritual adviser in the death chamber during an execution.
John Ramirez, on death row in Texas, seeks to have his spiritual adviser with him in the execution chamber so that he can “lay hands” on him and audibly pray. While the Texas Department of Criminal Justice allows an adviser to be present in the room, he or she must stand in a corner and is not allowed pray out loud. Ramirez’ lawyer says the policy violates his religious liberty rights.
Last month the justices put the execution on hold and scheduled expedited oral arguments.
In court papers, lawyers for Ramirez say that his Pastor, Dr. Dana Moore, is an ordained minister at the Second Baptist Church in Corpus Christi. Ramirez believes that Moore’s actions will “assist his passing from life to death and will guide his path to the afterlife.”
But the prison says its policies are meant to address security concerns and to defer to the expertise of prison administrators to establish procedures to maintain “order, security and discipline.”
Ramirez was convicted of robbing and murdering Pablo Castro in 2004 after stabbing him 29 times in a convenience store parking lot. He also robbed a second victim at knifepoint and fled to Mexico, evading arrest for three and a half years, according to the Texas Attorney General’s office.
State secrets, CIA detention facilities and FBI surveillance
The justices will take up two cases concerning the so-called state secrets privilege which permits the government to withhold information that it believes could harm national security if it were disclosed.
In the first, set for arguments on October 6, the court will consider a dispute brought by lawyers for Abu Zubaydah, an associate of Osama bin Laden, who is currently housed in Guantanamo Bay and whose lawyers are attempting to obtain classified information from former CIA contractors concerning his detention abroad.
Zubaydah was initially captured in Pakistan in March 2002 and detained in CIA detention facilities abroad. His lawyers are now seeking to compel discovery via subpoena from two CIA contractors (James Elmer Mitchell and John Bruce Jessen) who worked on the CIA program. Zubaydah wants the evidence for use in criminal proceedings in Poland that would confirm whether the CIA operated a detention facility in the country in the early 2000s and used interrogation techniques.
Zubaydah seeks to hold Polish officials accountable for their complicity in unlawful detention and torture in a CIA facility in Stare Kiejkuty, Poland.
The 9th US Circuit Court of Appeals rejected the US government’s assertion of the state secrets privilege over some of the information in the case, overruling the judgment of then-CIA Director Mike Pompeo regarding the potential harm to national security.
The second case involves a dispute brought by three Muslim men who seek to challenge the FBI, arguing that it unlawfully used a confidential informant to gather information about Muslims in their neighborhood based on their religious identity.
A district court had dismissed the claims under the state secrets privilege.
The 9th Circuit reversed, holding that the Foreign Intelligence Surveillance Act – a law aimed electronic communications – provides for procedures for challenging unlawful electronic surveillance in early stages of litigation and takes priority over the state secrets privilege.
The FBI agent infiltrated a mosque in Orange County, California, in 2006 and spent more than a year collecting names, phone numbers, emails and other information from the community.
Lawyers for Yassir Fazaga and two other Muslim men argued that their case “challenges a domestic FBI surveillance program that, according to the FBI’s own informant, targeted individuals for electronic surveillance because of their religion.”
Fazaga says the 9th Circuit was right to permit the case to proceed because FISA allows the review of the lawfulness of the surveillance “and at least at the threshold” displaces a claim based on state secrets.
Elizabeth Prelogar, then-acting US solicitor general, asked the justices to review the appeals court decision, arguing that it “undermines the Executives ability to protect sensitive national-security information and keep its promises to foreign allies.”
Correction: An earlier version of this story incorrectly quoted Justice Amy Coney Barrett. She said the justices are not "partisan hacks."