Abortion, guns, religion: Supreme Court returns to a docket full of explosive cases

John Fritze

WASHINGTON – The Supreme Court returns to work Monday with a docket full of controversial issues – abortion, guns and the death penalty – that will thrust the justices into America's culture wars in a way they largely avoided at this point last year.

After a busier-than-expected summer break, when the nation's highest court toppled President Joe Biden's eviction moratorium and let stand for now a Texas ban on abortion after six weeks of pregnancy, the court will once again hear in-person oral arguments and hand down formal opinions as it starts another nine-month term.

Mississippi's ban on most abortions after 15 weeks of pregnancy is by far the most heated case before the court, where a six-member conservative majority will have a crack at undermining and possibly overturning the landmark 1973 decision in Roe v. Wade that created a constitutional right to abortion or a subsequent case in 1992 that protected that right up to about 24 weeks of pregnancy.  

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The Supreme Court gets back to work Oct. 4.

The justices will also wade into legal disputes over the right to carry handguns outside the home, when officials may approve regulations that affect religion, whether the government may keep the existence of CIA "black sites" a secret and whether to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.

"There are certainly opportunities for seismic shifts," said Daniel Geyser, who has argued nearly a dozen cases at the Supreme Court and who will be before the justices again in November. "There are a lot of issues that will keep the court in the news."

That doesn't necessarily mean the cases will have a dramatic impact on the law. Frequently, disputes that look like blockbusters, such as last term's challenge to the Affordable Care Act, can fizzle. In the Obamacare case, a 7-2 majority ruled narrowly to uphold the law without getting to the merits of the legal issues. 

In the months after Associate Justice Amy Coney Barrett's confirmation, the court handed down decisions with larger-than-expected majorities. But as its term ended, it issued 6-3 decisions limiting voting rights and upending donor disclosure requirements that inflamed the left and undermined the notion that Chief Justice John Roberts was steering the court on an incremental course.

"Some of the cases that have shown up ... are a reflection of certain groups that see an opportunity to push the law where they want it to go," Geyser said. "But other times, it's just what the court happens to take, and we'll see if they decide narrowly or broadly."

As observers parse which court emerges when the justices take the bench this week, they'll have the benefit of some pre-pandemic normalcy. For the first time in more than year, the justices will return to the courtroom Monday and hold oral arguments in person – though concerns over COVID-19 will mean only the attorneys, journalists and the justices will be permitted to watch those proceedings.

Friday, days before in-person arguments were set to begin, the court announced that Associate Justice Brett Kavanaugh had tested positive for the coronavirus. Kavanaugh, who showed no symptoms Friday, will take part in arguments virtually.

"This term is going to tell us a lot," Kannon Shanmugam, an appellate attorney who has argued dozens of cases at the Supreme Court, said at a Federalist Society conference. The court will consider "the areas of public constitutional law that I think in many ways tell us the most about how justices look at the law." 

Here's a look at the biggest cases in play and what's at stake in their outcome. 

An abortion rights advocate demonstrates in Jackson, Miss., on May 21.

Mississippi abortion ban

If there were no other compelling appeals on the Supreme Court's docket, the term would still be consequential because of the high-profile challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy. The state's attorneys have explicitly asked the court to overturn decades of precedent on the divisive issue.

Abortion providers counter that little has changed about the procedure since a 7-2 majority concluded in Roe that a woman has a constitutional right to end a pregnancy, at least in its early stages. Overturning that decision, they asserted, would create "chaos" and undermine perceptions of the court as a neutral arbiter. 

In 1992, the Supreme Court ruled that states could prohibit abortions at the point when a fetus can survive outside the womb, or about 24 weeks. A host of conservative states, including Mississippi and Texas, approved bans far earlier in a pregnancy to test the high court's commitment to its nearly 30-year-old viability standard

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One of the challenges with the case, experts said, is finding the middle ground where the court is often most comfortable. Even if a conservative majority doesn't overrule Roe, allowing Mississippi to draw its own line on when to ban the procedure would mean other states could set prohibitions earlier in a pregnancy. 

Texas set a ban at six weeks, before many women realize they are pregnant. The Supreme Court declined to block enforcement of that law – for now – and several lawsuits, including one by the Justice Department, are pending in lower courts.

"The point of the law is to give the court an opportunity to cut back on constitutional protections for abortion rights," said Paul Smith, a Georgetown University law professor. "It seems to me the main issue in the case is how broadly will the court rule in modifying its existing regime of constitutional protection for abortion rights."

The case, Dobbs v. Jackson Women’s Health Organization, will be argued Dec. 1. 

Concealed-carry in New York

After more than a decade of steering clear of Second Amendment matters, the Supreme Court announced in April it would consider a major case challenging New York's gun laws. At issue is the state's requirement that residents show "proper cause" before obtaining a license to carry a concealed handgun for self-defense. 

In other words, applicants must show what New York officials see as some good reason to carry a gun. 

Even before President Donald Trump nominated three conservative justices, the court had expanded gun rights. It overruled handgun bans in Washington and Chicago in 2008 and 2010 in two blockbuster cases that affirmed the rights of Americans to possess guns in their homes but left unanswered questions about carrying in public.  

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The question before the court this term is whether New York may deny permits to carry guns outside the home despite the Second Amendment's right to "keep and bear arms." The justices could decide whether to apply a standard of some sort to determine when such gun regulations are permissible, as they do in First Amendment cases.     

Armed people rally for gun rights at the Texas Capitol on Jan. 17 in Austin.

A debate that has emerged in the broader fight is what the historical record says about local and state firearm regulations – arguments that could prove persuasive for a court that often tries to unearth what the nation's founders had in mind when they drafted the Constitution. New York points to several American colonies that limited the ability of people to carry weapons in the "public square." 

"Neither history nor precedent supports" the notion that people could "carry handguns 'whenever and wherever' a confrontation may conceivably arise," the state wrote.

The New York State Rifle and Pistol Association and two other plaintiffs challenging the regulation also cite English and colonial law and assert many of the Founding Fathers carried guns. The ability to carry, they told the court in a brief filed in July, was seen as "a matter of individual right in the early Republic." 

"It strikes me that there's a real fight here. This is not the kind of case where one side has all the history on its side," Roman Martinez, an appellate attorney who has argued several cases at the Supreme Court, said at a Georgetown Law conference. "I think both sides make very substantial historical arguments."

The case, New York State Rifle & Pistol Association v. Bruen, will be argued Nov. 3.

Debate over death penalty

The Supreme Court often hears last-minute appeals from death row inmates on its emergency docket. In the coming weeks, the justices will consider two high-profile cases through the more involved procedures of its merits docket that raise fundamental questions about executions. Several of the liberal justices have become increasingly critical of capital punishment in dissenting opinions.

The first involves Boston Marathon bomber Dzhokhar Tsarnaev and a Trump administration request to reinstate his death sentence after a federal appeals court ruled that a lower court judge failed to ensure a fair jury following wall-to-wall news coverage of the attack. One of the questions posed by the case is whether the judge should have asked prospective jurors about their media consumption of the bombing. 

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The Biden administration imposed a moratorium on federal executions. Despite the moratorium and the fact that Biden opposes capital punishment, the administration has continued to pursue the case – a position that appears to be in tension with those broader positions.

The government carried out 13 executions during Trump's final year in office. 

Tsarnaev, 28, was convicted of dozens of crimes in the terror attack that killed three people in 2013, and he received a death sentence in 2015. The Supreme Court will hear arguments in the Tsarnaev case Oct. 13.

The Supreme Court will consider a Texas death penalty case concerning an inmate's right to religious comfort.

Weeks later, the justices will hear a case about whether spiritual advisers may touch an inmate and pray audibly during an execution. John Ramirez, a Texas inmate convicted of fatally stabbing a convenience store clerk in 2004, asserts that state regulations prohibiting his pastor from touching him violate his rights. The court has looked increasingly favorably on religious freedom claims in recent terms.

Associate Justice Stephen Breyer has long called for a reexamination of the constitutionality of the death penalty. He repeated his argument this year in the case of Dustin Higgs, who was executed for killing three women in 1996.

Associate Justice Sonia Sotomayor also dissented in Higgs, questioning the process the high court's majority used to handle the rush of executions under Trump.   

"The court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised," she wrote. "Those whom the government executed during this endeavor deserved more from this court."

Tuition support for religious schools 

The court's conservative majority has steadily expanded the First Amendment's right to practice religion without government interference. The trend is the main reason why many observers expect a Maine family that wants to use a state education grant to send their daughter to a religious high school has a good chance of success. 

At issue is a Maine program that provides subsidies for private school when a district doesn't have its own secondary school, a circumstance often found in more remote parts of the largely rural state. Maine officials prohibit taxpayer funds from being redirected for religious instruction.

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"I don't think, just because you have the word 'Christian' or 'Catholic' in a school’s name that it should preclude your child from receiving the tax funds you're paying," Amy Carson, one of the Maine parents, told USA TODAY

The Supreme Court has ruled that, under the First Amendment, a state may not enforce such prohibitions just because a school is religious. Maine argues it isn't withholding the money because of the school's religious status but because of its religious instruction – a subtle difference that has been recognized in some lower courts.

Six of the nine Supreme Court justices attended Catholic high school. 

Dave and Amy Carson want to use a Maine education grant to send their daughter, Olivia, to a religious school.

The case pits two constitutional principles against one another: the prohibition on government passing laws that prohibit the free exercise of religion and the ban on laws "respecting an establishment" of religion. Maine asserts that spending taxpayer money on religious instruction violates the establishment clause.

"That's the most significant First Amendment case on the court's docket," Shanmugam said. "We have a court that is generally more friendly toward religious liberty. And so if I had to bet here, I think I would bet on the challengers."

The case, Carson v. Makin, is set for argument Dec. 8.

State secrets 

The high court will take up at least two cases dealing with when the government may decline to provide secret information by citing national security

In one of the first arguments of the term, the justices will hear a challenge Wednesday from a Guantanamo Bay detainee who is battling with the government for information about his detention in a CIA "black site" after the terrorist attacks in 2001

Abu Zubaydah seeks a court order to subpoena two CIA contractors who developed the interrogation techniques used by President George W. Bush's administration in overseas facilities in the wake of the 9/11 attacks, which lawmakers in both parties, international courts and human rights groups called torture. 

The federal government has resisted, asserting the information would reveal state secrets.

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Zubaydah was picked up by Pakistani authorities working with the CIA in 2002, suspected of being a high-level member of al-Qaida, the terrorist group behind the attacks. A report by the Senate Intelligence Committee in 2014 found the CIA "significantly overstated" Zubaydah's role in al-Qaida.

The California-based U.S. Court of Appeals for the 9th Circuit ordered that the sensitive details be segregated from other information that could be released. 

The justices will hear arguments in another suit next month about FBI surveillance of a Muslim community in California from 2006 to 2007. Yassir Fazaga and two other Muslim men said the covert surveillance happened solely because of their religion and violated their constitutional rights.

A lower federal court dismissed the suit after the government asserted its state secrets privilege, but the U.S. Court of Appeals for the 9th Circuit ruled that a provision of the Foreign Intelligence Surveillance Act of 1978 requires courts to review the materials in a private hearing with the government to determine whether any of it could be used in the case.

The court will hear arguments in Federal Bureau of Investigation v. Fazaga on Nov. 8.

Affirmative action at Harvard

Rowers paddle along the Charles River past the Harvard University campus March 7, 2017, in Cambridge, Mass.

The justices haven't decided whether they will hear a challenge to how Harvard University considers race in its undergraduate admissions process, but the issue is so fraught that the case is one to watch in coming months. The court has sent signals it intends to take it – at some point. 

The lawsuit was filed in 2014 by an anti-affirmative action group called Students for Fair Admissions, the brainchild of conservative legal strategist Edward Blum. The group charged that Harvard University discriminated against Asian American students in its admissions process to boost African American and Hispanic enrollment.

And that, the group argues, violates the 1964 Civil Rights Act. 

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Under Supreme Court precedent, universities may consider race as one factor among several when deciding whether to grant admission. 

Affirmative action policies in university admissions have been a target of conservatives for decades. In 2016, the court upheld the use of racial preferences in admissions at the University of Texas at Austin, asserting that "considerable deference is owed to a university" that wants to promote student body diversity.  

That 4-3 decision was written by Associate Justice Anthony Kennedy, the court's swing vote, who retired in 2018. He was succeeded by the more conservative Associate Justice Brett Kavanaugh. Since then, Barrett, another conservative, has joined the court, giving opponents of affirmative action renewed hope for a change in how the high court looks at the issue. 

At the end of the court's last term, in June, the justices requested input from the solicitor general, which represents the federal government at the high court. The move was widely seen as a tactic to delay taking the case until it handles other hot-button topics. 

"I do think it's inevitable that the court is going to take an affirmative action case," Tom Goldstein, appellate lawyer and SCOTUS blog publisher, said at the Federalist Society term preview this month. "It's another area of the law that is in transition as the court becomes more conservative."