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Supreme Court at crossroads in term with abortion and gun cases

Some justices have gone public with concerns that the court’s reputation is at stake

On abortion and guns, the Supreme Court could either issue broader rulings that could change American society or find middle ground with narrower consequences.
On abortion and guns, the Supreme Court could either issue broader rulings that could change American society or find middle ground with narrower consequences. (Bill Clark/CQ Roll Call)

The Supreme Court begins its new term next week at a crossroads and under tremendous political scrutiny, as the expanded conservative majority takes on major cases on abortion and guns that could change American society as well as how the public views the high court’s legitimacy.

Those issues will dominate commentary about the Supreme Court through the end of the term in June. By that point, with the 2022 midterm elections in full swing, the justices may have ruled to give states more power to restrict abortion access and less power to curtail firearm possession.

Abortion and gun rights long have motivated partisan political clashes and debates about the court. But a narrow 5-4 conservative majority for years curbed major changes to constitutional law in those areas, where the court’s work greatly influences the country’s culture.

Now, the 6-3 conservative majority has agreed to decide cases that ask the court to unwind nearly 50 years of precedents on the constitutional right to an abortion and to expand for the first time the Second Amendment rights to possess a gun outside the home.

Both major issues closely align with long-standing Republican political priorities and weave throughout campaign rhetoric and recent superheated Supreme Court confirmation battles.

“The conditions for the right side running the table have never looked better,” Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown Law, said last week at a panel discussion to preview the court’s coming term.

“In every term besides the last, one right-side justice was all it took to slow down, and occasionally reverse, the march to the right. And that’s no longer true,” Gornstein said.

Big or small

The question hanging over the term, as it has been for several years, is whether the court will make broader decisions that have sweeping fallout in American life, or whether it will find a middle ground with narrower consequences.

Last term, the first with the current lineup of justices, turned out to be a transitional one. The majority avoided big moves on major issues and reached unexpected consensus on many of the most controversial cases in a way that limited the scope of the decision’s impact.

That’s an approach that Chief Justice John G. Roberts Jr. has talked about, with an overriding concern to maintain the legitimacy of the court as nonpartisan. Yet on the last day of the term in July, the conservative wing stuck together for 6-3 decisions on voting rights and money in politics that aligned with Republicans and their allies.

And, this summer, the justices issued a sharply divided 5-4 emergency order to allow a Texas law to go into effect that all but banned abortion after six weeks of pregnancy — about 85 percent to 95 percent of all abortions in that state.

The legal fights over that Texas law will likely force the Supreme Court to act again on abortion in the coming months. In one, the Justice Department filed a lawsuit that pointed out how Texas women are being forced to travel hundreds of miles to nearby states to have abortions or have missed appointments because they don’t have the means to make such a trip.

Political pressure

That has only intensified the already white-hot political spotlight and fueled expectations from both ends of the political spectrum. The justices in December are set to hear oral argument in a case about a Mississippi law that bans abortions after 15 weeks of pregnancy and the constitutionality of such bans on abortions before the fetus could survive outside the womb on its own.

Former Vice President Mike Pence, speaking last week at a family values forum in Hungary, noted that three new justices, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, were appointed under the Trump administration.

“It is our hope and our prayer that in the coming days the new conservative majority on the Supreme Court of the United States will take action to restore the sanctity of life to the center of American law,” said Pence, a longtime opponent of abortion.

The current right to an abortion rests mainly on two cases: Planned Parenthood v. Casey, a 5-4 decision in 1992 that found states could not enact laws that are an “undue burden” on the right to an abortion, including bans before viability of the fetus, and the landmark 1973 decision Roe v. Wade, which first established the right to an abortion.

The divide on Capitol Hill is as partisan as it is longstanding. In briefs, a combined 231 Republican members of Congress urged the Supreme Court to overturn Roe and Casey, while 236 Democratic members of Congress, as well as the Biden administration, urged the opposite.

The Mississippi case appears poised to spark division no matter how it is decided. Carrie Severino, a former clerk for Justice Clarence Thomas, said that any ruling in the case would cause a huge explosion in American culture but that there is little space for compromise in the case.

“I don’t think anyone has come up with a clear explanation to me of how, under existing Supreme Court precedent, you could possibly have a 15-week abortion ban surviving” judicial review, Severino, chief counsel and policy director at the Judicial Crisis Network, said last week at a Federalist Society panel discussion on the court’s new term.

In the other major case, set for oral argument in November, a gun rights group is appealing a ruling that upheld New York’s process that denies the vast majority of concealed carry permit applications. In Congress, Democratic efforts on gun control — in the wake of a series of mass shootings at schools, concerts and grocery stores — have run into a Republican roadblock in the Senate.

Those cases, and another about religious liberty, are in areas that can reveal the most about how the justices look at the law, Kannon Shanmugam, the chair of the Supreme Court and appellate practice group at the Paul, Weiss law firm in Washington, said during the Federalist Society panel discussion.

“Particularly with three new members on the court in the last four years, who have had relatively limited ability to opine on those issues, this term is going to tell us a lot, just based on those three cases alone,” Shanmugam said.

The political environment is fraught for the court in other ways: A bill from several Democratic lawmakers seeks to expand the number of justices, while a White House commission will report on that and other possible structural changes to the court.

Making their case

Some justices went public in recent weeks with concerns that the court’s reputation is at stake, no matter how they might rule on a typical haul of lower-profile cases.

Justice Stephen G. Breyer, under pressure from the political left to retire so Democrats can fill his seat with a younger liberal, made media appearances to promote his new book about how politics can imperil the court’s legitimacy.

Thomas, the court’s most conservative member, blamed the media in a speech this month for making it sound like justices simply go to their personal preferences on issues like abortion.

And Barrett cautioned in a speech this month that “judicial philosophies are not the same as political parties.” She was introduced by Mitch McConnell, who as Senate majority leader ushered her confirmation through the chamber just ahead of the 2020 presidential election.

But a Gallup poll released Thursday found that Americans’ opinions of the Supreme Court have worsened over the summer, from a 49 percent approval in July to just 40 percent this month, the lowest job approval rating since that poll started in 2000.

“Whenever the court is saying that it’s not a political institution, that’s a pretty good indication that there are a large number of people who think it is,” John Elwood, the head of the Arnold & Porter law firm’s appellate and Supreme Court practice, said during the Washington Legal Foundation’s preview for the term last week.

Gornstein said those kinds of comments from the justices are all well and good, but sweeping decisions from the court’s conservatives in the next term or two on politically divisive issues such as abortion and gun rights could alter the public’s view of the justices.

“If right-side judicial philosophies always produce results favored by Republicans, and left-side judicial philosophies always produce results favored by Democrats, there is little chance of persuading the public there is a difference between the two,” Gornstein said.

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