Monday, June 6, 2022

Issues to watch as high-profile Supreme Court term ends

As the most controversial Supreme Court term in recent memory winds down, the justices have yet to decide a whopping 33 cases, including blockbuster disputes over abortion, religion and guns.

The justices are expected to wrap up their work by late June or early July, which means the coming weeks will see the Supreme Court make headlines with a slate of opinions that have the potential to dramatically reshape American life.

Here are five looming disputes the court will adjudicate before the term ends and the justices break for summer recess.


The draft majority opinion that leaked last month revealing that the justices are poised to strike down Roe v. Wade has all eyes on abortion rights.

The question now is will that draft opinion become law, or have the court’s conservatives scaled back their ambitions amid the ensuing fallout?

The leaked opinion, written in February by Justice Samuel Alito, would eliminate the constitutional right to abortion up to the point when a fetus is viable, typically around 24 weeks. Removing this nearly 50-year-old federal right would let states choose how to regulate the procedure and produce a legal patchwork of highly permissive blue states, harshly restrictive red states and others somewhere in between.

The case before the court this term, Dobbs v. Jackson Women’s Health, concerns Mississippi’s 15-week abortion ban.

Chief Justice John Roberts has reportedly sought to uphold the Mississippi abortion ban but on narrower grounds that stop short of overturning Roe, unlike Alito’s approach that garnered support from the five justices to Roberts’s right. The likeliest conservative targets to join Roberts on a middle path would be Justices Brett Kavanaugh and Amy Coney Barrett.

“People need to remember that the justices who are willing to overturn Roe v. Wade have been raised on a steady diet of teachings that Roe has always been illegitimate,” said Robert Tsai, a law professor at Boston University. “For most of them, it has been just a matter of when, not if, to vote against abortion rights.”


The justices will soon issue their first major gun rights opinion in more than a decade, a ruling that will come after two particularly heinous recent mass shootings intensified the debate over the Second Amendment and public safety.

Experts say that the conservative majority court is likely to rule in favor of a challenge to New York’s restrictions on the concealed carry of a handgun.

The case, New York State Rifle & Pistol Association Inc. v. Bruen, concerns a law that forces concealed carry applicants to show a special need for the license, beyond the basic desire for self-defense. New York is among eight states and the District of Columbia with such a restriction.

Many court watchers believe a majority of justices will vote to invalidate the New York law, but ​​it’s unclear just how broadly the Supreme Court might rule.

The case is likely to flesh out the court’s 2008 decision in District of Columbia v. Heller, which recognized an individual’s right to keep a gun in the home. That ruling recognized that Second Amendment rights are “not unlimited” but did not clearly define those boundaries. 


The court has yet to decide two cases involving religion.

One case involves a high school football coach who was reprimanded for holding postgame prayers on the football field’s 50-yard line. Coach Joseph Kennedy sued his Seattle-area school district after it placed him on paid leave for allegedly encouraging students to engage in prayer in violation of school policy.

When the justices heard April oral argument in Kennedy v. Bremerton School District, they were shown two sharply contrasting accounts of the facts. Kennedy’s lawyer described the coach’s conduct after games as merely “private religious expression.” The school’s counsel depicted Kennedy as having led a prominent public demonstration of his religious beliefs on school grounds and in his influential capacity as a coach, putting pressure on even the team’s non-religious players to join, lest their playing time be cut.

Experts said the outcome in the case may hinge on which set of facts prove most persuasive.

The second big religious rights clash concerns a challenge to Maine’s so-called sectarian exclusion, a policy that makes K-12 schools with religious instruction ineligible for taxpayer-backed tuition aid.

Maine law gives school-age children the right to free public education. But because many rural districts lack a public high school, a workaround was devised that allows these students to attend nearby qualifying private schools with public assistance.

Under Maine law, however, schools that offer religious instruction are ineligible.

This exclusion prompted the lawsuit, Carson v. Makin, a challenge brought by Maine parents who say that barring families’ preferred schools from the tuition aid program based on religion violates constitutional religious rights under the First Amendment.


The justices will soon issue a decision over the Biden administration’s bid to break with a Trump-era immigration policy requiring asylum-seekers at the southern border to stay in Mexico while their applications are processed.

Trump’s “Remain in Mexico” policy, implemented in 2019, remains in effect despite the conclusion by Biden’s Department of Homeland Security that it is not in the U.S. national interest. The Biden administration’s two efforts to rescind the program were blocked by lower courts, which led to the dispute, Biden v. Texas, being appealed to the justices.

Prior to Trump’s presidency, administrations generally allowed those fleeing violence to cross the border and apply for asylum within the U.S. But under Trump, more than 70,000 asylum-seekers were returned to Mexico under the policy.

At stake in the case are the fate of those directly affected by the program, formally called the Migrant Protection Protocols, as well as questions concerning how much discretion the executive branch has over U.S. border enforcement policies.


Another major case pending before the justices could redefine the federal government’s power to regulate a main contributor to climate change. At issue in the dispute is the authority of the Environmental Protection Agency (EPA) to address air pollution from power plants.

The central question in the case, West Virginia v. EPA, is whether the agency’s reach extends beyond the confines of plant sites to encompass broader aspects of the U.S. energy sector as part of an effort to tackle air pollution.

The EPA began to flex its muscle under President Obama by urging energy companies to consider so-called “outside-the-fence” measures to reduce emissions. These included shifting from high-emission energy sources such as coal in favor of lower-emission sources including natural gas, or even renewable energy sources that produce no greenhouse gas. Trump sought to repeal his predecessor’s policy, but the competing approaches became bogged down in procedurally complex legal challenges in lower federal courts before reaching the justices.  

During arguments in February, the 6-3 conservative majority court did not clearly telegraph an outcome in the case, though several of the court’s conservative justices seemed concerned about whether the more sweeping interpretation of EPA authority went beyond the power granted to it by Congress. 

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