As the Supreme Court takes off for the summer, it has already teed up a slew of newsy cases for the fall, including the biggest abortion and Second Amendment fights in decades and potentially an explosive case questioning affirmative action.
The justices finished releasing opinions from last fall’s arguments in early July, but that doesn’t mean they will remain dormant until October. Over the next few months, the often unpredictable court could release orders in any number of cases as attorneys prepare their briefs and arguments.
Already, the most-covered case of the next term is Dobbs v. Jackson Women’s Health Organization, a Mississippi challenge to Roe v. Wade, the landmark 1973 decision legalizing abortion nationwide. It concerns a state ban on abortions before 15 weeks, which calls into question the court’s previous rulings on fetal viability. Activists on both sides of the abortion debate agree that the case could be a massive milestone in a nearly 50-year battle over abortion. The Supreme Court in May agreed to hear arguments in the case after sitting on it for nearly a year.
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Nebraska Sen. Ben Sasse told the Washington Examiner when the court took up the case that it represented the best opportunity for the court to cede control over abortion law back to the states, where it stood before the Roe decision.
“The Supreme Court now has an opportunity to affirm this American system and recognize that states can enact compassionate, commonsense, pro-life legislation,” Sasse said.
Mississippi Attorney General Lynn Fitch made a similar case for a state’s right to decide on abortion rights in an op-ed published in the Wall Street Journal several weeks after the court added the case to its fall calendar.
But before the court agreed to hear the case, it was the backdrop to an internecine battle among anti-abortion conservatives speculating over the greater significance of a Roe overturn. Some said that throwing the question back to the states was not enough. Led by the political theorist John Finnis, they claim that the Fourteenth Amendment can be interpreted to prohibit abortion, an argument first made in the wake of Roe by L. Brent Bozell, Jr., one of the first anti-abortion activists.
Others, however, said that, given the court’s current composition of mostly originalist conservatives, it was unlikely that the justices could be compelled to find a right to life in the Fourteenth Amendment. Ed Whelan, the most prominent conservative jurist to make this case, responded in a series of essays to arguments made by Finnis and others.
But when the court agreed to hear the Mississippi case, partisans on both sides of the debate, as well as proponents of abortion protections, recognized its significance. Marjorie Dannenfelser, president of the Susan B. Anthony List, called it a “landmark opportunity” for the cause of the largest anti-abortion activism group.
Still, many conservative legal experts worry that the court, famous under Chief Justice John Roberts for attempting to remain apolitical, will brush aside the case by leaning back on Planned Parenthood v. Casey, the 1992 decision which reaffirmed Roe.
“If so, Dobbs will displace Casey as the worst Supreme Court decision of all time, and the justices rendering it will merit the most severe condemnation of history,” wrote Michael Stokes Paulson, a law professor at the University of St. Thomas, in a series of essays on the case.
One of the court’s other most publicized cases is a New York firearms dispute, the first major Second Amendment case. The justices will examine whether a state law forcing gun owners to demonstrate “proper cause” for a concealed carry permit violates the Second Amendment. The case came before the court after Justice Neil Gorsuch, joined by Justices Samuel Alito and Clarence Thomas, all but asked for it in a 2019 opinion.
The apparent occasional tendency of the justices to solicit cases for their review has also amped up speculation that the court will soon accept for argument a challenge to Harvard University’s admissions policies. These policies, which some activists have labeled as anti-Asian American, have been the subject of nearly a decade of litigation. In mid-June, the court asked for the Biden administration’s opinion in the case, signaling that it is seriously considering accepting it for arguments.
The case, raised by the activist group Students for Fair Admissions, seeks to punch a hole into affirmative action. It particularly targets a 2003 Supreme Court decision finding that colleges could factor race into the admissions process. Before President Donald Trump left office, his administration filed a brief in support of the students challenging Harvard’s policies.
Another potentially explosive case is a renewed push for the execution of Dzhokhar Tsarnaev, the primary perpetrator in the 2013 Boston Marathon bombing. The court accepted the case in March, and it has since proven divisive within the Biden administration. Attorney General Merrick Garland, on the one hand, supports putting Tsarnaev to death. But the president would like to see the federal government resume its moratorium on executions.
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“President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness,” White House deputy press secretary Andrew Bates told the Washington Examiner.
The court will resume hearing arguments in early October.
