Rather than handing conservatives a string of wins,
the Supreme Court has left advocates on the right grasping for answers about
high-profile cases.
John Fritze, USA TODAY
Published 11:00 AM GMT+2 Apr. 11, 2021 Updated 11:00
AM GMT+2 Apr. 11, 2021
WASHINGTON – When Associate Justice Amy Coney Barrett took
her seat on the Supreme Court in October, Democrats openly fretted about a
lopsided conservative court unwinding years of precedent on abortion, gun control and
other divisive issues.
But rather than handing conservatives a string of
victories, the justices have – so far – left advocates on the right grasping
for answers about why a number of pending challenges dealing with some of the
nation's biggest controversies have languished.
From an abortion case out of Mississippi to
a scorching dispute between Texas and California pitting religious freedom against gay rights,
the justices are sitting on several contentious issues that will now wait until
this fall – at the earliest – to get a hearing, assuming the court takes the
cases at all.
"There's always a reason to kick the can down the
road," lamented Josh Blackman, a law professor at South Texas College of
Law Houston. "These issues linger and fester if they don't come to any
sort of resolution. That's sort of where we are."AD
When former President Donald Trump nominated Barrett in
September, Democrats warned her confirmation would tilt the court to the
"far right," noting it would have a 6-3 split between conservatives
and liberals for the first time in decades. New York Sen. Chuck Schumer, the
chamber's Democratic leader, said Barrett's confirmation would "alter the
lives and freedoms of the American people while they stood in line to
vote."
But in the months since then the court's approach has
been far less dramatic. It sided with churches and synagogues challenging COVID-19 restrictions
but dismissed a battery of appeals by Trump and his allies
seeking to change the outcome of the 2020 election. It
jettisoned some controversial matters left over from the Trump administration
and sidestepped others.
Of 13 signed opinions published by the court so far
this year, all but one have put conservatives and liberals together in
the majority that decided the case.
Part of it may be the result of the court's rhythm –
big, controversial cases tend to be decided closer to summer – and part of it
may have to do with the appeals the court has taken or dismissed. Court
observers speculate that Chief Justice John Roberts is
eager to lower the temperature and steer the court around partisan
controversies.
Here's a look at some of the red hot appeals waiting
in the wings of the Supreme Court's docket.
First abortion case?
Easily the most closely watched pending litigation at
the court deals with Mississippi's ban on most
abortions after 15 weeks of pregnancy.
Many conservatives for more than a
generation have sought to either overturn the 1973 landmark Roe v. Wade decision that legalized
abortion nationwide or at least chip away at it. Some see the Mississippi case
as the first real test of the court's resolve on the issue.
As Justice Byron White observed, 'every time a new justice comes to the
Supreme Court, it’s a different court.
'But the justices have been weighing whether to hear
the case for months.
"It could be the first abortion case to be
reviewed by the current set of justices," noted Walter Weber, senior
counsel at the conservative American Center for Law and Justice. "As Justice
Byron White observed, 'every time a new justice comes to the Supreme Court,
it’s a different court.'"
Some speculate the court is eager to avoid taking
up such a controversial case for now. Others
think the court is preparing to decide not to take the appeal and one
or more of the conservative justices are busy writing a lengthy dissent
from that decision. For now, the unusual delay is a mystery that has vexed even
some of the court's closest observers.
“Your speculation about why the court hasn’t yet
indicated whether it will hear our challenge to Mississippi’s 15-week
abortion ban is as good as mine," said Hillary Schneller, senior staff
attorney at the Center for Reproductive Rights. "But I do know
that this should not be a hard case. This abortion ban
violates nearly 50 years of Supreme Court precedent that holds states
cannot enforce pre-viability abortion bans."
The court is simultaneously considering another
abortion case on its so-called shadow docket, an
appeal by Tennessee last week that wants to
enforce a 48-hour waiting period before abortions are performed. That could be
decided this spring.
Texas v. California
The Supreme Court is also sitting on a dispute this
term between the nation's two most populous and perhaps most politically
disparate states: California and Texas. The case once again underscores a
tension in the law between religious liberty and gay rights.
California approved a state law in 2016 prohibiting taxpayer-funded travel to
states that don't explicitly prohibit discrimination on the basis of
sexual orientation. Texas allows foster-care and adoption agencies to deny
same-sex couples as parents if they object to gay marriage on religious
grounds. Texas sued California last year and the justices have been
considering whether to take the case since
January.
Attorneys general in California and Texas did not
respond to questions about the case, but Texas told the court the California
law could have huge economic consequences.
"If this cycle of retaliation continues, it will
leave a country divided into red and blue states: The former spend money only
in other red states; the latter spend money only in the blue ones,” the Lone
Star State's lawyers told the court.
California says it's within bounds to set
policies for how to spend taxpayer money.
"The fact that California has balanced these
sometimes competing concerns differently from Texas does not demonstrate that
California acted irrationally or with animus toward religion," it told the
court in a filing last year.
The suit has parallels to one of the biggest cases
before the court this term, which will likely be decided this summer. In that
suit, Philadelphia wants to prohibit what it
says is same-sex discrimination by a Catholic foster
care agency. The agency asserts it cannot screen same-sex couples to be
parents because it opposes gay marriage on religious grounds.
Guns on the outside
The court has sidestepped Second Amendment disputes
for years, but several experts predict the justices are primed to pluck a gun rights case for
consideration soon. If they decide the time is right, they'll soon have several
cases to choose from.
When it struck down handgun bans in the District of
Columbia and Chicago in 2008 and 2010, the court
specifically gave a nod to the right to own a gun for lawful
purposes, such as self-defense inside the home. Now the justices have
before them a case questioning whether states may regulate the right to
carry guns away from home.
You have a very wide split amongst the lower courts here on a question that
seems to be very clear based on the text of the Second Amendment.
Two New York State residents sought a license to carry
guns outside their homes but were denied because they didn't meet the
state's requirement of having a "special need for self protection"
beyond what's required by the general public. Their lawsuit wound its way to
the Supreme Court in December.
Michael Jean, director of the office of litigation
counsel for the National Rifle Association, said gun rights advocates are
hopeful the court will take up the New York case. Several of the justices have
indicated a desire to wade into the issue in recent dissents and with six
potential votes in play, there's a better chance conservatives can marshal a
majority.
"You have a very wide split amongst the lower
courts here on a question that seems to be very clear based on the text of the
Second Amendment," he said. "The text...says 'keep and bear.' Twin
verbs meaning twin purposes of the right.”
Other cases question whether those convicted of
non-violent crimes should be banned from owning guns.
Potentially working against taking up those
cases: A recent spate of high-profile mass shootings in Georgia and Colorado
that last month snapped Washington's attention back to the partisan debate over
gun rights.
Return of affirmative action,
transgender bathroom battles
A handful of other controversial issues aren't ready
but are sitting on the horizon and could become blockbuster issues in the fall.
Two such cases involve disputes that have been heard at the court before.
A group opposed to affirmative action is trying to stop Harvard University’s consideration of race in its admissions process, alleging the school discriminated against Asian Americans to boost Black and Hispanic enrollment.
The Supreme Court narrowly upheld the admissions process at the University of Texas at Austin in 2016 but that opinion was penned by Associate Justice Anthony Kennedy, a consummate swing vote who has retired. The current court is far more conservative than it was five years ago.
"This case is the kind of important individual
rights dispute that this court has not hesitated to hear," the
anti-affirmative action Students for Fair Admissions argued. "it isn’t
just any university. It’s Harvard. Harvard has been at the center of the
controversy over ethnic- and race based admissions for nearly a century."
Also back on the court's docket: The fight over
whether students may use a bathroom matching their gender identity. A
Virginia school board wants the court to review its policy of requiring
students to use bathrooms based on their sex assigned at birth or use
private bathrooms. In 2019, the court declined to review a
Pennsylvania school district's policy allowing transgender students to
use bathrooms consistent with their gender identity.
The Virginia school district, Gloucester County,
framed the issue as being of critical "importance to the
millions of students whose privacy rights are at risk, or to the legions of
schools deprived of the freedom to make commonsense distinctions on the basis
of sex."
But the American Civil Liberties Union, which has
argued the other side of the case, blasted the school district for
"digging in its heels."
"Federal law is clear," Josh Block, a senior
staff attorney at the group said recently. "Transgender students are
protected from discrimination."
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