The Supreme Court’s conservative majority may be on the cusp of upending decades of precedent

As the Supreme Court begins its term, a conservative majority could usher in longstanding Republican aims

Andrew Feinberg
Tuesday 05 October 2021 19:10
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<p>Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on 23 April 2021</p>

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on 23 April 2021

Donald Trump has been gone from Washington for nine months, but his chaotic legacy was in full force on Monday when the solidly conservative Supreme Court returned for in-person arguments, kicking off a term that could deliver judicial victories the right has long dreamed of.

While the court’s nine justices – all of whom have now been fully vaccinated against the coronavirus – have been meeting in person for their regular conference meetings since earlier this year, Monday’s session was the first time the court convened for in-person oral arguments since May 2020. It was also the first in-person oral argument session since Justice Amy Coney Barrett was sworn in to replace liberal icon Ruth Bader Ginsburg, who had passed away in the weeks leading up to the 2020 election.

With Ms Barrett having assumed the bench in the late Ms Ginsburg’s stead, Mr Trump succeeded in presiding over a conservative reshaping of the Supreme Court that looks to be in full force as the justices take up a slew of cases that could reward Republicans on a host of hot-button issues, including abortion, gun rights, separation of church and state, and possibly even affirmative action in higher education – all in the face of mounting criticism over how they handle cases they decide without holding oral arguments.

Waiting for the right moment

Since taking on the role of chief justice two decades ago, John Roberts has attempted to keep the court’s reputation as a non-partisan, non-political actor intact.

Perhaps to that end, the court postponed many of the hot-button cases now on its docket so they did not become part of the election-year politicking that accompanies a race for the presidency every four years.

But with the 2020 election in the bag and a new, solidly conservative majority on the bench, the court could be poised to undo years of jurisprudence and give the conservative legal movement the payoff it has been awaiting for years.

“I think it’s full speed ahead,” said University of Michigan Law School professor Leah Litman, when asked whether the new majority would shy away from upsetting established precedent in service of longstanding Republican aims.

“There’s no question in my mind that the court either invalidates the New York firearm restriction or says courts have to subject that firearm restriction to very rigorous judicial scrutiny; there’s no question that the court modifies the standard that courts use to determine whether abortion restrictions are constitutional,” Ms Litman said. “No question about that, in that the court strikes down the main restrictions on funding religious education in Carson [v Makin], and so in that sense, it’s very much full steam ahead. I don’t see them changing course at all”.

Woe for Roe?

For five decades, religious conservatives have dreamed of a supreme court that is willing to uphold state laws which forbid women from ending pregnancies in their first two trimesters – something the high court has held to be a constitutional right since the landmark Roe v Wade decision and the 1992 case which upheld that ruling, Planned Parenthood v Casey. Yet the 6-3 majority of Republican-appointed justices may be poised to do just that.

This term, the court will consider whether to revive a Mississippi state law which forbids abortion after 15 weeks of pregnancy. In legal documents filed with the court, Mississippi has explicitly asked the justices to overturn the Roe legal precedent.

Yet many reproductive rights advocates have noted that the new Trump-infused court has already effectively overruled Roe in Texas, after a 5-4 conservative majority of justices allowed a law which prohibits abortion after roughly six weeks of pregnancy to go into effect.

Justice Sonia Sotomayor, an Obama appointee, wrote that her colleagues had “bur[ied] their heads in the sand” by refusing to enjoin enforcement of the “flagrantly unconstitutional” law.

“This equates to a near-categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realise they are pregnant, and months before fetal viability,” she wrote.

Before Justice Ginsburg’s death, the court had voted 5-4, with Chief Justice Roberts siding with the four Democratic-appointed justices, to block a Louisiana law that would have closed most abortion clinics in the state. But with Ms Barrett’s ascension to the highest court in the land, it appears that she may well join justices Gorsuch, Kavanaugh, Alito and Thomas – the latter two of whom have explicitly called for Roe to be overturned – in allowing states to outlaw abortion.

Gunning for gun control laws

In 1991, retired chief justice of the United States Warren Burger called the idea that the second amendment protects the individual’s right to own firearms “the subject of one of the greatest pieces of fraud … on the American public by special interest groups that I have ever seen in my lifetime”. Yet that is exactly the view the court adopted in 2008, when the then Justice Antonin Scalia authored a 5-4 majority opinion in the case of District of Columbia v Heller, in which the court ruled for the first time that the second amendment protects an individual right to own and keep a firearm in the home for self-defence purposes, overturning the District of Columbia’s near-total ban on individual handgun ownership.

Two years later, in McDonald v Chicago, the court went even further by finding that the right to bear arms was “fundamental” and was protected from state interference under the terms of the 14th amendment.

More than a decade later, the court may be poised to expand handgun rights by overturning a century-old New York state law which requires applicants for handgun carry permits to demonstrate “proper cause” before they can receive approval to carry a handgun in public.

Such restrictions are commonplace in cities across the United States and in many so-called “blue” states, but in recent years pro-firearm activists have pushed state legislatures to enact laws which require authorities to issue handgun permits. Some GOP-controlled states have even gone so far as to permit the concealed carrying of handguns in most public places without the need for a permit.

But when the court hears the case of New York State Rifle & Pistol Association v Corlett on 3 November, it could go so far as to throw out any and all handgun permitting laws that give state or local officials discretion to determine who can carry a concealed handgun in their jurisdictions.

The court goes back to school

The last time the Supreme Court rendered a verdict on whether colleges can use race as a factor in admissions was five years ago, when Justice Anthony Kennedy’s majority opinion upheld the University of Texas’s admissions policy.

Since then, a number of lawsuits – often backed by Republican activists – have sought to give a far more receptive court a chance to overturn the 2003 ruling from Grutter v Bollinger, which allows schools to use race as a factor in admissions as part of an effort to assemble a diverse student body.

One such case, Students for Fair Admissions v President and Fellows of Harvard College, is currently before the court. The suit seeks to have the court overrule Bollinger and find that Harvard is discriminating against Asian applicants in violation of the Civil Rights Act in their effort to assemble a racially diverse class each year.

Another hot-button case, Carson v Makin, challenges Maine’s state Department of Education policy which prevents families who live in areas without public school systems to use public funds to send their children to explicitly religious schools.

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