The Supreme Court could send a shock through politics and policy in Washington and across the nation with decisions over the next two months — and reveal just how fast the recently expanded conservative majority wants to move on some of the most divisive topics among Americans.
Dozens if not hundreds of protesters gathered outside the court building late Monday after Politico published a remarkable leak of a draft opinion in a case from Mississippi that indicates the Supreme Court had voted privately to wipe out longstanding rulings that established a constitutional right to an abortion.
[Leaked draft abortion decision recasts 2022 political realm]
While not a final decision and not necessarily an unexpected outcome, the draft showed that the court might be ready to release “as significant as any opinion the Court has ever issued,” American Civil Liberties Union executive director Anthony Romero said.
The sudden revelation that the court is poised to not just cut back on constitutional abortion rights, but wipe them out and leave women with a patchwork of state laws on the availability of abortion, drew strong reactions across the country.
It injected the issue into congressional elections, sparked calls to change Senate rules and pass federal legislation to keep abortion rights, and brought promises of action from governors on both ends of the political spectrum.
Chief Justice John G. Roberts Jr., in a news release Tuesday, called the leak of an “authentic” draft opinion in an abortion case “a singular and egregious breach” of the trust around Supreme Court employees, and directed the Marshal of the Court to launch an investigation into the source.
The court has other potential blockbuster decisions left on other cases, which could make it harder for states to regulate the carrying of guns and harder for the federal government to change course on immigration.
Another forthcoming opinion could hamper federal efforts to fight climate change — and a man known as an environmental activist set himself on fire in front of the Supreme Court on Earth Day in what his father believes was a protest, the Washington Post reported.
Conservative tilt
Republicans have brought major cases this term to a recently expanded conservative majority that holds a 6-3 advantage on the court. That tilt won’t change when Justice Stephen G. Breyer retires at the end of the term at the end of June, and Judge Ketanji Brown Jackson replaces him.
The Supreme Court largely sidestepped controversy last term but appears to be headed right towards it in the current term. And in a sign of how fast the conservatives have moved, Roberts has split from them on significant cases this term.
That includes a decision that allowed Alabama’s allegedly racially gerrymandered congressional map to be used for this fall’s election, and another that allowed a strict Texas abortion law to remain in place.
Aziz Huq, a law professor at the University of Chicago Law School, said the cases remaining this term are a culmination of long-term partisan incentives in an increasingly divided country.
Parties mobilized around Supreme Court appointments, and now “the cases reflect the interests of the justices and the justices reflect the priorities of the coalition that appointed them,” Huq said. The choice of the cases themselves also reflect the wishes of a more conservative court.
“At least the immediate term is going to show that the Republican strategy is going to pay off if you have Republican policy goals in mind,” Huq said.
President Joe Biden told reporters Tuesday that the draft decision authored by Justice Samuel A. Alito Jr. is “radical.” And Biden echoed concerns from some legal commentators that the reasoning found in the draft on abortion rights could invite challenges to other rights about private life.
“Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, it’s against the law in Florida?” Biden said at Andrews Air Force Base. “It’s a fundamental shift in American jurisprudence.”
Abortion rights
The abortion case, challenging Mississippi’s 15-week abortion ban, is a moment for the conservative legal movement, which for years sought the reversal of Roe v. Wade, the landmark 1973 decision that first established a constitutional right to abortion.
Mississippi’s ban on abortions after 15 weeks of pregnancy targeted a central holding in the Roe decision, where the Supreme Court ruled that states could not ban abortions before fetal viability, at about 24 weeks of pregnancy.
Data from the Guttmacher Institute, a reproductive health research organization, shows that 23 states have laws that could restrict abortion access if Roe were struck.
Nine of these laws are unenforced state bans from prior to 1973, but 13 states have passed laws after Roe that would be triggered to go into effect if precedent changes. There are also nine states with bans that have been blocked that could be reinstated if precedent changes.
University of California, Berkeley, Law School professor Khiara Bridges, at a Constitutional Accountability Center event last week, said a decision against abortion rights would come down hardest on people who do not have the ability or means to travel where an abortion would be available.
“I guess the only, only source of optimism may be in the likelihood that the Supreme Court’s decision will sort of spur activism,” Bridges said. “It will cause people to, you know, take to their state legislatures, take to the streets to demand protection, for the ability to control what happens to one’s body.”
Other cases
In another case, a pair of New York gun owners challenged the state’s regime for issuing concealed-carry permits for handguns. A decision in that case could expand the scope of Second Amendment rights outside the home.
The gun owners argued that the state’s rules violate the Constitution because they make it almost impossible to obtain the needed license to carry a handgun in public. Gun rights backers have argued to extend existing case law allowing possession of a handgun in the home for self-protection to the general public.
The Supreme Court also must grapple with its doctrine allowing states to bar guns in so-called “sensitive places,” such as schools, churches and large public events.
In an immigration case, the justices could curb the power of presidents to reverse the policies of their predecessors — on the border and beyond. The justices will decide Texas’ challenge to the Biden administration’s effort to end the so-called “Remain in Mexico” policy, also known as Migrant Protection Protocols or MPP.
[Supreme Court mulls attempt to end ‘Remain in Mexico’ policy]
The Trump administration launched the policy in 2019, requiring thousands of asylum-seekers to wait in Mexico while seeking asylum in the United States. Then the Biden administration pulled back on the regulation, resulting in the court fight.
In an environmental case, West Virginia and other states initially sought to vacate the Obama administration’s Clean Power Plan, which was never enacted. Then came the Trump administration’s Affordable Clean Energy rule, which was vacated by the U.S. Court of Appeals for the D.C. Circuit.
West Virginia and others now seek to have the Supreme Court reinstate the ACE rule, likely different from a power plan pollution rule the Biden administration is now contemplating.
The Constitutional Accountability Center’s chief counsel, Brianne Gorod, said the case could end up testing the limits of power agencies like the EPA have to enact regulations.
“What the court does, hearing what it says could have really far-reaching implications, you know, well outside the scope of this particular case,” Gorod said.
Sandhya Raman, Suzanne Monyak and Todd Ruger contributed to this report.
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