The Consequential Term at the Supreme Court: Commentary

By Paul Fisher

The 2021-2022 Supreme Court term is winding down. There are more than 30 opinions to be issued by the end of June or early July. While Supreme Court opinions always evoke strong responses, the opinions that will be issued in the next four to five weeks should get explosive reactions.

In the liberal media, the pending opinions have been called “doom,” the “end of democracy,” “a tsunami” and other names that indicate fear, anger and hatred and have already resulted in demonstrations outside the Supreme Court and the private homes of several of the Justices — as well as a planned assassination of Justice Brett Kavanaugh. We have also seen an unprecedented leak of a complete draft of a Supreme Court opinion.

Let’s dive into the most consequential of the cases where opinions will be issued:

Dobbs v Jackson Women’s Health Organization

This, of course, is the case where there was a leaked draft of an opinion. The author was Justice Alito. While we can’t be certain that the final opinion will reach the same conclusion as the draft indicates or that the Justices who appear to be ready to join Alito or who appear to be ready to dissent will not change, the draft opinion would reverse Roe v Wade and Casey v Planned Parenthood and end the abortion right created in 1973 and return the question of whether to prohibit or regulate abortion to the States.

Justice Alito said in the draft that Roe v Wade was “egregiously wrong” and “poorly reasoned” and that it cannot be allowed to stand. He analyzed ”liberty” as used in and protected under the 14^th Amendment (no State “shall deprive any person of life, liberty or property , without due process of law”) and concluded that rights protected under the 14^th Amendment must either be explicitly mentioned in the Constitution or “deeply rooted” at the time of the adoption of the 14^th Amendment and he concluded that there is no abortion right that meets that test. He expressly said that no opinions not dealing with abortion are affected by a reversal of Roe and Casey.

This has not stopped hysterical speculation that Griswold v Connecticut (dealing with the right to purchase contraceptives) and Loving v Virginia (dealing with interracial marriage) or Obergefell v Hodges (which legalized same sex marriage) are likely to be reversed as well. This wild speculation though misses the point that all of those cases deal with marital or sexual relations, while Roe and Casey deal with the protection of life.

Joining Alito were Justices Thomas, Gorsuch, Kavanaugh and Barrett. It appears that Justices Breyer, Sotomayor and Kagan will dissent. It is unclear how Justice Roberts will vote, although in oral arguments Justice Roberts seemed to be seeking a middle ground. This case stems from a Mississippi statute that would prohibit abortion, with limited exceptions, after 15 weeks of a pregnancy. Under the Casey opinion, no law that creates an “undue burden” on women seeking to have an abortion prior to “viability”, roughly at 24 weeks of a pregnancy, would be constitutional.

The middle ground that Justice Roberts may be seeking would uphold the Mississippi statute but not reverse Roe and Casey. It is significant that the author of the draft opinion was Justice Alito and not Justice Roberts. If Justice Roberts were to agree to a reversal of Roe and Casey, then Justice Roberts would designate the Justice to write the opinion so that leads to the conclusion that Justice Roberts is not (or, at the time the draft was written, was not, prepared to support a reversal of Roe and Casey.

It is certainly possible that Justice Roberts is working to flip one or more of the Justices who appear ready to reverse Roe and Casey so he can save the abortion right while allowing the States to prohibit or regulate abortion at an earlier point than viability. As significant as this opinion itself will be, perhaps the political attack on the legitimacy and independence of the Supreme Court is equally as significant. There have been calls for expanding the number of Justices or impeaching Justices or even bombing the Supreme Court building. Cries of a “threat to our democracy” have been loud. Imagine—returning the issue to the States so that each could decide its own abortion policy is deemed a threat to democracy. Somewhere Orwell is smiling.

New York State Rifle and Pistol Association v Bruen

This is the most important gun rights case to be heard by the Supreme Court since District of Columbia v Heller (2008). In Heller, the Court decided that the Second Amendment right to bear arms was an individual right and was not limited to individuals as part of a militia. The Court said individuals could possess guns in their homes for self-defense, but the Court did not address possession outside one’s home.

The New York Rifle and Pistol Association case deals with gun possession outside one’s home. New York requires that to get a concealed carry permit to carry a gun outside one’s home, the applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession”. This special need must be non-speculative. Cases in New York have held that good character is not sufficient nor is living in a high crime area sufficient. The power to determine a “special need” or a “proper cause” is given to firearms licensing officers.

If the Court sides with the New York Rifle and Pistol Association, most (not all) gun control statutes will be likely to be ruled unconstitutional. This case is being decided in the frenzied atmosphere caused by several mass murders and a renewed attempt to ban so-called assault weapons. This is the first gun rights case being heard by the Supreme Court since the appointment by President Trump of Justices Gorsuch, Kavanaugh and Barrett and all of them (as well as Justices Roberts and Thomas) have expressed the need for the Supreme Court to review current Supreme Court Second Amendment jurisprudence

West Virginia v Environmental Protection Agency

This case raises the question whether the EPA can regulate carbon emissions under the Clean Air Act. There is no mention of carbon emissions or climate change in the Clean Air Act. The purpose of the Clean Air Act was to regulate pollution which could have adverse health effects. West Virginia argued that the regulation of carbon emissions is not within the scope of the Clean Air Act and Congress has given no indication that the regulation of carbon emissions was delegated to the EPA. The non-delegation doctrine holds that legislative authority cannot be delegated to administrative agencies and administrative agencies can only act within the express authority granted by Congress.

In addition to the non-delegation doctrine, the Court will likely consider the ”major questions doctrine,” which holds that courts should not defer to the statutory determination of regulatory agencies if they concern questions of “vast economic or political significance.” This case has significance that goes beyond the EPA’s regulation of carbon emission since there are dozens of Federal agencies that have exercised regulatory powers not expressly created by Congress. It goes to the heart of the administrative state which ironically limits democracy by putting power in unelected agencies and allows Congress to avoid doing the business of legislating.

However, we should be careful to recognize that the Court could rule against the EPA but still not touch the broader Chevron deference doctrine that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but is rather implicit that courts should defer to the administrative agency’s interpretation of the statute if there is any reasonable basis for its interpretation.

Kennedy v Bremiton School District and Carson v Makin.

Both of these cases deal with religious liberty. Under the 1^st Amendment, no law is permitted “respecting the establishment of religion, or prohibiting the free exercise thereof.” In Kennedy, the issue is whether a public high school coach praying after games on the playing field and inviting, but not requiring, players to join him amounts to an establishment of religion. In Carson, the issue is whether an educational grant program available to all students in Maine can be limited to use at non-sectarian schools. Carson has the potential to open up school choice programs. Maine argues that it may restrict the use of public funds to prevent subsidizing or supporting sectarian schools.

So, the next four to five weeks may yield a series of earthquakes in the areas of abortion, gun rights, regulatory power and religious liberty. It would be the 4^th of July come early. I will report on the opinions in these cases after they are issued.

Paul Fisher is a member of The Heartland Institute’s Board of Directors and a policy advisor on legal affairs. He values feedback from his readers at paulfisher1947@gmail.com.