High court juggling several big cases
Beyond Roe, justices also weighing guns, climate
WASHINGTON – The wrenching legal fight over abortion isn’t the only controversial issue to be decided by the Supreme Court in coming weeks. It just feels that way.
From a blockbuster lawsuit that may expand Americans’ right to carry handguns to a case that could weaken the ability of the federal government to address climate change, the court’s docket is full of deeply divisive and important disputes that might have received more attention in a year when the fate of Roe v. Wade wasn’t hanging in the balance.
The challenge to Roe, the 1973 decision establishing a constitutional right to abortion, is arguably the most important case to reach the high court in decades. The recent leak of a draft opinion sparked protests – and celebrations – as Americans contemplated the unwinding of reproductive rights as they have been understood for five decades.
The abortion appeal as well as the cases dealing with the Second Amendment, climate and religious schools, will likely be decided in June. Since the court’s term began in October, the justices have heard arguments in 63 cases. They have decided about half of them.
Abortion “has dominated the minds of court watchers and interested parties since Justice Barrett was confirmed,” said Timothy Johnson, a professor of political science and law at the University of Minnesota. “That’s the first time we had the super majority” of conservatives who appear to be willing to overturn Roe v. Wade.
Associate Justice Amy Coney Barrett’s elevation to the court in 2020 gave its conservative wing a 6-3 majority, pushing it farther to the right than at any point in decades.
Even before Mississippi’s ban on most abortions after 15 weeks of pregnancy presented a direct challenge to Roe, the fight over reproductive rights had been a central part of the court’s work. Late last year the justices wrestled with a Texas ban on abortion after six weeks of pregnancy. And while the
court sided with Texas on procedural grounds, the divided decision nevertheless thrust the underlying debate over abortion to the fore.
But other dramatic decisions are also on the way. And while those conflicts haven’t received as much attention, they have the potential to land with a big impact.
More guns in public?
A majority of the Supreme Court justices signaled in November that they took issue with a New York law imposing strict licensing requirements for people who want to carry a handgun in public. The decision in the court’s most important Second Amendment case in more than a decade will come just weeks after a mass shooting at a Buffalo supermarket.
It’s arguably the second highest-profile case at the Supreme Court this term.
The court could rule that Americans have a constitutional right to carry guns in public, just as it ruled in 2008 that individuals have a right under the Second Amendment to keep a weapon at home. But even if a majority doesn’t go that far, a ruling against New York would almost certainly invite challenges to similar gun laws in at least six other liberal states, such as California, Maryland, New Jersey and Massachusetts.
“The focus and the attention that have appropriately been paid to the leaked draft opinion to me reinforces that the decisions that the court makes have real life and death implications,” said Eric Tirschwell, executive director of Everytown Law, which advocates for gun control. “When we’re talking about guns and gun violence and gun safety laws, it’s just a very concrete, tangible connection to what the court may do.”
At issue is a New York law that requires residents to demonstrate “proper cause” to carry a handgun – in other words, a need for a permit greater than the general public. Two upstate New York residents, joined by the New York State Rifle and Pistol Association, sued when a county denied them the carry privileges they sought.
A National Rifle Association spokeswoman said that most gun owners are well informed about major changes pending around Second Amendment rights. The NRA, said spokeswoman Amy Hunter, “communicates regularly with our members and have kept them abreast of developments” in the New York gun case.
Climate change
An Environmental Protection Agency rule created during President Barack Obama’s administration to regulate power plant emissions was never implemented. Targets set by that regulation were already achieved through the marketdriven closure of hundreds of coal plants. But the Supreme Court is nevertheless set to decide a dispute over the regulation, with potentially enormous consequences for efforts to curb climate change.
Obama’s EPA required states to reduce emissions by shifting power plants away from coal. President Donald Trump repealed those rules in 2017, easing the requirements on the plants but prompting a new round of lawsuits. While the fight is ostensibly over the environment, questions about the ability of federal agencies to regulate industries without a specific mandate from Congress are also front and center.
The answers have implications for government regulations in any situation where the law gives agencies some leeway to decide what they can mandate.
“This has real implications for the functioning of a modern government,” said David Doniger, director of the climate and clean energy program at the Natural Resources Defense Council. “If the argument is that Congress didn’t speak clearly about this, first of all, this statute is a lot more detailed than many, many others.”
The case, Doniger said, shouldn’t “slip by in the shadow of the abortion decision, or any other.”
While the court’s three liberal justices signaled support for the government’s power to impose sweeping restrictions on greenhouse gasses, the court’s six-member conservative bloc was harder to read after two hours of oral argument in February. Nineteen states, led by West Virginia, are challenging the regulations.
West Virginia’s solicitor general, Lindsay See, told the justices in February that Congress and the states should be the entities to set such regulations – not the EPA – because they “are able to weigh all of the competing factors and constituencies in play.” An earlier appeals court, she said, “was wrong to short-circuit that process” by ruling against the Trump administration.
Public money, religious schools
The court is also considering a Maine program that allows parents to use taxpayer money to send their children to private schools but prohibits them from spending it at schools that offer religious instruction. While Maine’s program is unusual – owing to the state’s vast rural expanses – the court’s decision could have far-reaching consequences.
Some experts see potential impact far beyond Maine if the high court rules in such a way that requires states to fund religious schools in programs where they currently do not. Depending on its reasoning, a ruling against Maine could implicate public funding for schools more broadly, even in traditional public districts without subsidies.
Such a decision could also have an impact on voucher programs across the nation.
The court’s conservative justices have looked favorably in recent years on claims asserting religious discrimination. In 2017, the court concluded that a Lutheran church in Missouri could apply for a competitive state grant that paid for playground resurfacing. In 2020, the court ruled that a Montana scholarship program could not exclude schools just because they had an affiliation with a religion.
But in that case, the court left unanswered the question of whether public money could be used for schools that specifically teach the Bible, the Torah or the Quran. During oral arguments late last year, justices on both ends of the court’s ideological spectrum raised concerns about the possibility of discrimination.
“The next door neighbor says, ‘Well, we want to send our children to a religious private school’ and they’re not going to get the benefit,” said Associate Justice Brett Kavanaugh, a Trump nominee. “That’s just discrimination on the basis of religion right there at the neighborhood level.”
But Associate Justice Elena Kagan questioned why taxpayer money should be directed to schools, citing religious objections, that might decline to accept LGBTQ students.
“These schools are overtly discriminatory, they’re proudly discriminatory,” said Kagan, an Obama nominee. “Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools.”