WASHINGTON (AP) – The future of abortion law rests in the hands of a Conservative Supreme Court, which begins a new term on Monday that includes key gun rights and religion cases.
The court’s public credibility could also be at stake, especially if a split court ruled Roe v. Wade in 1973, which established a woman’s right to abortion nationwide.
Judges are returning to the courtroom after an 18-month absence due to the coronavirus pandemic, and the potential retirement of 83-year-old liberal judge Stephen Breyer is also looming.
It is the first full term of the court in its current orientation.
Judge Amy Coney Barrett, the last of former President Donald Trump’s three men on trial, is part of a Conservative majority of six judges. Barrett was nominated and confirmed last year amid the pandemic, just over a month after Judge Ruth Bader Ginsburg passed away.
Trump and the Republicans who controlled the Senate were moving quickly to fill the seat just before the 2020 presidential election, bringing with it a dramatic change in the cast of the court that paved the way for a potentially law-changing tenure on several high-profile issues has prepared.
With abortion, guns, and religion already on the agenda and a positive action call on the horizon, the court will answer a key question next year, said David Strauss, law professor at the University of Chicago. “Is this the term in which the culture wars are returning to the Supreme Court on a grand scale?” said Strauss.
No issue is bigger than abortion.
Judges will hear arguments in Mississippi on December 1 to enforce a ban on most abortions after 15 weeks of gestation. Lower courts blocked the law because it is inconsistent with Supreme Court rulings that allow states to regulate but not prohibit abortions before viability.
Mississippi, in this case, is pursuing what conservative commentator Carrie Severino called “demolish-the-band-aid-off” by asking the court to abandon its support for the abortion law set out in Roe and the 1992 Planned Parenthood case became Casey.
Mississippi is one of 12 states with so-called trigger laws that would go into effect if Roe were overthrown and abortions were completely banned.
By 5 to 4 votes in early September, the Texas court has already approved a ban on most abortions, although no court has yet ruled on the content of the law.
But that vote and the Mississippi case underscore the potential risk to the court’s reputation, said David Cole, legal director of the American Civil Liberties Union. The arguments put forward by Mississippi were examined 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 Justice Department attorney under Trump, said the court could greatly expand gun rights and end the use of the breed in college admissions, but only abortion is likely to move the court’s public perception. “I still don’t think this is going to cause a public stir unless it’s accompanied by some kind of turning point decision on abortion,” Wall said.
In early November, the court will challenge New York City‘s restrictions on the carrying of guns in public, a case that allows the court to extend gun rights under the Second Amendment. Before Barrett joined the court, the judges turned down similar cases due to disagreements among some conservative members of the court.
By the time Barrett arrived, some gun rights judges were asking if Chief Justice John Roberts would cast a fifth majority vote “for a broader reading of the Second Amendment,” said George Washington University law professor Robert Cottrol, who said he hoped the court would now expand gun rights.
More than 40 states already make it easy to arm yourself in public, but New York and California, two of the most populous states in the country, are among the few with stricter regulations.
The case worried proponents of gun control.
“A far-reaching ruling by the Supreme Court could limit or prohibit the sensible solutions that have been shown to end gun violence,” said Jonathan Lowy, vice president and chief counsel of Brady’s Gun Violence Prevention Group. Lowy cited as examples of such “sensible solutions” state laws that provide a justification for carrying a weapon.
A Maine case gives the court another opportunity to weigh religious rights in education. The state excludes religious schools from a school program for families living in cities that do not have public schools.
Even before Ginsburg’s death, the court had favored lawsuits for discrimination based on religion, and legal experts expect that parents in Maine who were sued for spending taxpayers’ money at religious schools will win, although it is not clear how far the court will go could go rule.
Affirmative action is not on the court’s agenda just yet, but it could get there later this term in a lawsuit over Harvard’s use of race in college admissions. Lower courts upheld the school’s guidelines, but in this case too, the change in the composition of the court could be decisive. The court upheld racially conscious licensing guidelines just five years ago, but that was before Trump’s three appointments added to the court’s conservative bias.
Among other notable cases, the judges are considering reinstating the death penalty for the Boston marathon bomber Dzhokhar Tsarnaev. The Biden administration is pushing for the death penalty despite suspending federal facilities and calling for an end to the federal death penalty.
The court will also consider two cases involving “state secrets,” the idea that the government can block the publication of information that it claims would harm national security if disclosed. One case involves a Guantanamo Bay detainee who was tortured in CIA custody, according to a lower court. The other is a group of Muslim California residents who claim the FBI targeted them for surveillance because of their religion.
Decisions in most major cases will not be made until spring because judges typically spend months drafting and revising majority and dissenting opinions.
At that point, Breyer could signal whether he intends to retire from a position he has held since 1994 on summer break and will start hearing cases again in October.
The aftermath of Ginsburg’s decision to stay in court during Barack Obama’s presidency and her death while Trump was in the White House cannot be overlooked by Breyer, said Tom Goldstein, founder of the Scotusblog website and a frequent attorney in court.
“It is overwhelmingly likely that he will retire during this tenure,” said Goldstein.
The courthouse is still closed to the public, but live audio of the court’s arguments will be available and reporters covering the court regularly will be in attendance. The traditional court first made live audio available in May 2020 when the court began listening to arguments over the phone during the pandemic.
Judge Brett Kavanaugh will attend oral arguments from home next week after testing positive for COVID-19 despite being vaccinated. The court said on Friday that the 54-year-old judiciary had no symptoms.
Associate press journalist Jessica Gresko contributed to this report.