What's Left at SCOTUS and Why You Should be Very Afraid

 By Eric Segall

As of this morning, the Supreme Court has 20 cases left to decide. This week the Justices will issue opinions on Tuesday and Thursday. The Court usually finishes its business by the last day of June but there is no hard and fast rule about that. Although many of these cases are certainly important, here's my list of the five most critical ones, and a brief discussion about each one.

1. Dobbs v. Mississippi

Unless you have been living under a rock, you already know that Dobbs involves a 15-week abortion ban and that Justice Alito's draft opinion upholding the ban and returning all issues concerning abortion to the states was leaked over a month ago. The draft explicitly reversed Roe v Wade and Planned Parenthood v Casey. This blog has comprehensively covered the leaked opinion, its monstrous tone, and its erasing of women's rights and considerations from the abortion discussion.

I expect the tone of the opinion to change dramatically but the result to stay largely the same. As someone who had long felt that Roe and Casey were wrongly decided, I now believe that I overlooked an incredibly important part of the issue--namely, that Roe, in addition to of course being about abortion, was also a strong symbol of the movement towards gender equality in this country. I fear that its reversal will place a huge barrier in the way of that movement.

However, it is also true that the Court will do nothing (at least this term) that makes abortion illegal or that prevents the states or Congress from protecting abortion rights. The political arena is where the battle most likely now must be fought. Being pro-choice all the way down, I hope we fight that battle hard and with every tool we can, including strong civil disobedience all the way up to but definitely not crossing the line of violence. 

Women cannot be equal in this country unless they have full control over their reproductive choices. That needs to be the ultimate goal and it is one that we cannot expect the courts to protect anytime in the near future.

2. New York Pistol & Rifle Association v. Bruen

This case presents a Second Amendment challenge to a 108-year-old New York law that requires a special permit before someone may legally carry a concealed handgun. The Court has not issued an important Second Amendment opinion since 2010. It shouldn't this year either for a number of reasons.

First, the New York law has a long historical pedigree and is not too different from many other gun laws that have been on the books since the Founding. 

Second, given the spate of tragic gun shootings in recent months, it would be a terrible time for the Court to issue a strong guns rights opinion. And yes, the Justices read, or used to read, the headlines.

Third, the facts of this case are quite blurry, as Chief Justice Roberts himself seemed to recognize at oral argument. We really don't know how this law is implemented in New York, whether, as one would expect, it is much easier to get a permit in rural New York than Manhattan, or how many permits have been requested over the last few year years, how many were granted or denied, etc. In short, the record is a mess.

In any sane world, the states would be left to work out the balance between alleged gun rights and gun control laws. What works in upstate New York may not work in Brooklyn but if New York wants a one size fits all regime, it should be allowed to use that approach. There is no constitutional issue in this country more sensitive to local conditions than finding the right balance between public safety and gun rights. What is effective in Montana, Los Angeles, rural Massachusetts, and Columbus, Ohio might vary considerably. Leaving aside the remote possibility that Congress might pass meaningful gun reform, there is no need for the Justices to get involved in these hard, local questions. Over 40 states protect gun rights; we simply don't need the Justices to do the same, at least not with respect to state laws. 

I expect a narrow and divided ruling or maybe even a hold over to next term. But, of course, that prediction is worth as much as you paid for it.

3. West Virginia v. EPA

This quite complicated administrative law case isn't even a case and in a world where law mattered to the Supreme Court, the Justices wouldn't decide it. Here is a summary from Amy Howe of  SCOTUSBlog:

The dispute began in 2015 with the Obama administration’s adoption of the Clean Power Plan, a rule that sought to combat climate change by reducing carbon pollution from power plants. The plan never went into effect, however: Several states and private plaintiffs challenged it in federal court, and a divided Supreme Court put it on hold in February 2016. 

The Trump administration’s EPA repealed the Clean Power Plan in 2019, replacing it with a more lenient policy, known as the Affordable Clean Energy Rule, that established emissions guidelines only for existing coal-fired steam plants. The Trump EPA argued that it was compelled to repeal the Clean Power Plan because it exceeded the agency’s authority under the Clean Air Act. Specifically, the EPA contended, Section 7411 of the act only allowed it to prescribe measures that can be implemented on the physical premises of a power plant – a limitation known in industry parlance as 'inside the fenceline.' By contrast, the Clean Power Plan included some measures that applied industry-wide.

The Trump EPA’s decision to repeal the Clean Power Plan and issue the ACE Rule led to another court challenge by a different set of plaintiffs. In January 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated the repeal of the Clean Power Plan, vacated the ACE Rule, and sent the issue back to the EPA for more proceedings. The Supreme Court then granted a request by Republican-led states and coal companies to review that ruling; meanwhile, the Biden administration EPA has indicated that it will not reinstate the Clean Power Plan and is instead drafting its own rules on greenhouse-gas emissions from power plants.

In other words, the Obama rule came and went, the Trump rule came and went, and the Biden rule still does not exist. As U.S. Solicitor General Elizabeth Prelogar  argued, the dispute is not properly before the justices because there is no EPA rule in effect at all. The D.C. Circuit, Prelogar argued, invalidated the ACE Rule and did not resurrect the Clean Power Plan. What the Republican-led states and coal companies are really trying to do is to greatly limit the EPA’s power in future rulemaking.

Of course, that is the rub. The Justices have concocted out of whole cloth a dubious "major questions" doctrine which suggests that Congress cannot delegate some authority to federal agencies but what kind of authority no one can define even broadly. But make no mistake, the Court's conservatives are rolling back the administrative state at every opportunity and if they reach the merits of this one, which they emphatically should  not, they will do so again. Keep an eye on this "case" because it could be a real beginning to the return of a pre-New Deal understanding of federal power or something close to it. In a world threatened by climate change, that is the wrong move at the wrong time, and it is based not on text, history, or precedent but the libertarian values of the Justices on the Roberts Court. 

4. Kennedy v. Bremerton School District

This case involves a high school coach who after football games would pray quite publicly at the 50 yard line, often with students from both teams. He was warned by the school district to stop praying so publicly and given the option to pray alone in his office or at least at some time and place where students would not be present. The facts are murky as to how many students joined the coach in prayer and as to how much of a media circus the coach's prayers caused. After he was fired, the coach moved from Washington State to Florida to take care of an ill family member but he claims that he will return to his old school if the Court rules in his favor.

The Court has long held that teacher-led prayers are not allowed in public schools and that school sponsored prayers at graduation ceremonies and football games violate the Establishment Clause. The school in this case argues that the coach's prayers fall neatly within those cases while the coach alleges he has the constitutional right to silently pray for a brief period of time after games and on the field as long as he does not pressure students to join his prayers which he claims he has never done. The school says that there is coercion inherent in the coach's prayers and that the school wants to steer clear of endorsing religion.

As I recently wrote on this blog, the Roberts Court has consistently interpreted the Establishment Clause out of the Constitution in a variety of cases, including those involving religious symbols on public property, prayers at legislative sessions, and government aid to religious schools while at the same time the Court has strengthened the Free Exercise Clause. Expect more of the same in this case as the Court will likely rule for the praying coach, albeit hopefully in a narrow manner confined to the facts. It is also possible, however, that the Court will go big and put a big dent in its school prayer cases. That would be a shame as it is quite obvious that public school teachers and coaches, while retaining the right to pray on school grounds in private, should not be allowed to make a spectacle of themselves praying, which will inevitably put pressure on students to pray as well.

V. Carson v. Makin

The State of Maine has a problem. There are approximately 180,000 elementary and secondary school children in the state spread out over 260 public school districts. Often in rural areas there are not enough students to fill public schools so Maine helps parents financially to send their children to private schools, which have to be "non-sectarian." A school is sectarian if it engages in religious instruction.

The plaintiffs are parents who argue it is unconstitutional for Maine to set aside money for parents to send their kids to non-religious private schools but not private religious schools. For its part, Maine makes the quite common sense argument (meaning it will lose) that it is simply trying through this program to replicate a public school education and such an education should not (maybe cannot) include religious education. 

I wrote here about the Court's recent alarming trend to interpret the free exercise clause to require states which provide assistance to private non-religious schools to provide the same assistance to religious schools:

Prior to the 2000 Supreme Court decision in Mitchell v. Helms, the Court had wrestled for decades with what kind of aid the government could provide to religious schools under the establishment clause. The Court had mostly limited such aid to secular textbooks and diagnostic testing. The rationale for these limits was that the establishment clause forbade the use of tax dollars by government officials to support religion. In Helms, however, the Court reversed a number of cases and held that the Constitution does not prohibit most government aid to religious schools as long as that financial assistance is generally available to both secular and religious schools. Nothing in Helms suggested that states had to provide such aid under the free exercise clause, just that the establishment clause did not forbit such aid.

The Roberts Court, however, has dramatically altered the balance struck by Helms. In two recent cases, the conservatives on the Court have held that if states want to assist secular private schools either through government aid directly to the schools through playground resurfacing or by making non-religious schools more affordable, it must provide the same aid to religious schools whether the states want to or not. What was once an impermissible choice under the establishment clause, and then an allowable decision under the establishment clause, is now a mandate under the free exercise clause. This shift reflects the Roberts Court's belief that local and state governments must lower the wall of separation whether they want to or not. This change in the law ignores precedent, common sense, and most importantly, federalism concerns pertaining to local decisions over local issues.

All of that applies to this case as well. Maine should be allowed to assist parents who want to send their children to public or secular private schools without being constitutionally required to help parents of kids attending schools that proselytize or teach religion. Allowing the government to refuse to use taxpayer money to fund religion was absolutely part of the First Amendment's original meaning.  But do not expect originalism to carry the day here because in the Roberts Court religion is The Trump Card.

My advice for this case and all the rest is to hope for the best but expect the worst.