Conservatives look at 2022 in the U.S. Supreme Court with great anticipation, while liberals feel dread for what is likely to come. But all, on both sides of the political aisle, agree that 2022 is going to be a momentous year for the Supreme Court, writes Professor Erwin Chemerinsky, dean of the University of California at Berkley School of Law, in the ABA Journal.
This will be the term in which there will be a clear
indication of what the three justices appointed by President Donald Trump are
likely to mean for the future of constitutional law. To have a sense of the
significance of this for the court, it is stunning to realize that while Trump
picked three justices in four years, the prior three Democratic
presidents—Carter, Clinton and Obama—selected only four justices in a combined
20 years in office.
No one doubts the three Trump nominees—Neil M.
Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett—are conservative. But how
conservative will they be? How willing will they be to overrule precedent? Will
they all join Justices Clarence Thomas and Samuel A. Alito to create a
reliable, staunch conservative majority, or might one or more of the Trump
nominees join with Chief Justice John G. Roberts Jr. to steer the court in a
more moderate, albeit conservative direction? And where will Roberts be if the
five more conservative justices join together in key areas of constitutional
law?
Four cases, three of which already have been argued
and another which will be heard on Jan. 7, are likely to dominate the headlines
in June 2022 as the court hands down the most high-profile cases of the term.
And lurking in the background is the question of will he or won’t he retire
that surrounds Justice Stephen G. Breyer.
Abortion
No decision is more eagerly awaited than the ruling
in Dobbs v. Jackson Women’s Health Organization. It involves a Mississippi
law that prohibits abortions after 15 weeks of pregnancy. Forty-nine years ago
this month, in January 1973, the court held in Roe v. Wade that
states cannot prohibit abortions prior to viability, which is about the 24th
week of pregnancy.
The Mississippi law is clearly unconstitutional
under current law, but few expect the court’s majority to strike it down. At
the oral argument, on Dec. 1, Roberts suggested that the justices could uphold
the Mississippi law and allow states to prohibit abortions before viability,
but without the court taking a position on laws that forbid abortions even
earlier. But the questions from Kavanaugh and Barrett strongly indicated that
they believe Roe should be overruled. No one doubts that Thomas, Alito
and Gorsuch will vote to overturn Roe and allow states to prohibit
all abortions.
A significant restriction of abortion rights seems
inevitable, but how far the court goes in allowing states to prohibit abortions
could matter enormously for countless women and certainly will further fuel
efforts in many state legislatures to impose even greater restrictions on
abortions.
Guns
I am not sure when views about gun rights and gun
regulation hardened along ideological lines, but there is no doubt that conservatives
are looking to the current court to provide much more protections for gun
owners under the Second Amendment. New York State Rifle and Pistol
Association v. Bruen, which was argued on Nov. 3, 2021, will provide the
opportunity for the court to do so.
A New York law that is more than 100 years old
prohibits having a concealed weapon in public without a permit. A person can
obtain a permit only by showing that his or her safety requires it. The Supreme
Court likely will decide whether there is a right to have guns outside the home
and whether, and how, states can regulate concealed weapons. From the oral
argument, it seemed that the majority is poised to strike down the New York
law, but it is unclear how far the court will go in limiting the ability of the
government to regulate guns in public.
Religion
For decades, the issue before the Supreme Court was
whether the government violated the Establishment Clause of the First Amendment
when it gave particular forms of aid to religious schools. There were cases
about whether the government could provide audio-visual equipment or
sign-language interpreters or buses for field trips to religious schools and
their students. Now, though, the issue is whether the Free Exercise Clause
requires the government to provide aid to religious schools when it gives
assistance to private secular schools.
That is the issue in Carson v. Makin, which was
argued on Dec. 8. There are areas of Maine that are too rural to support public
schools. In those areas, school administrative units provide funds for parents
to send their children to secular private schools; the funds cannot be used for
“sectarian schools.” Two parents and two schools have brought a challenge to
this, arguing that the denial of aid denies free exercise of religion.
The justices at the oral argument seemed clearly
split along ideological lines, with the conservatives seeing this as
impermissible discrimination against religion, while the liberal justices
regarding the government has having a valid interest in using its funds to
provide a secular education for all children in the state.
Vaccines
In December, the court granted expedited review and
scheduled oral arguments to be heard on Jan. 7 in two cases involving Biden
administration rules imposing vaccination requirements on workers. One is an
emergency regulation that mandates employers with more than 100 workers to
require vaccinations or weekly COVID-19 tests of their employees. The
Occupational Safety and Health Administration created the workplace mandate as
an emergency temporary standard, which can be adopted when “employees are
exposed to grave danger from exposure to substances or agents determined to be
toxic or physically harmful or from new hazards.”
On Dec. 17, the U.S. Court of Appeals for the Sixth Circuit,
in a 2-1 decision, ruled in favor of the Biden administration and upheld the
rule. The court explained that “Given OSHA’s clear and exercised authority to
regulate viruses, OSHA necessarily has the authority to regulate infectious
diseases that are not unique to the workplace. … OSHA has demonstrated the
pervasive danger that COVID-19 poses to workers—unvaccinated workers in
particular—in their workplaces.”
The other regulation was adopted by the Centers for
Medicare and Medicaid Services in the Department of Health and Human Services.
It requires all health care workers at facilities that participate in Medicare
and Medicaid programs to be fully vaccinated against COVID-19 unless they are
eligible for a medical or religious exemption. Twenty-six states, all led by
Republican officials, brought several lawsuits challenging this rule. Two
federal courts of appeals said that the rule was invalid, while one federal
court of appeals upheld it.
The Supreme Court was asked to issue emergency
orders in these cases, but without even waiting for full briefing on those
requests, the justices took the very unusual step of granting review on both
regulations and scheduling the cases for expedited oral arguments. The issues
before the court are likely to be primarily about the statutory authority of
OSHA and the Centers for Medicare and Medicaid Services to promulgate the
regulations, rather than the constitutionality of the rules.
This comes to the court amidst a huge political
divide in the United States about COVID-19 and vaccinations. A study in
December found that that four in 10 Republicans remain unvaccinated, compared
to just one in 10 Democrats. In the lower courts in these cases, judges
appointed by Democrats almost always voted to uphold the rules, while judges
appointed by Republicans usually voted to invalidate them. Will the justices
similarly divide?
Will he or won’t he?
In June 2021, a flurry of articles—including one by
me—and even advertisements encouraged Justice Breyer to retire. He didn’t do
so, and the pressure will be even greater for him to step down at the
completion of this term. The Democrats well could lose control of the Senate as
a result of the November 2022 elections. If so, no one believes that a
Republican-controlled Senate would confirm a Biden nominee for the court. If
Breyer wants the best chance for a replacement with his values and views, the
safest course will be to retire in July 2022.
Breyer, though, has made clear that he enjoys being
on the court and being the most senior justice in the liberal bloc. But he will
be 84 on Aug. 15, and he saw how Justice Ruth Bader Ginsburg’s failure to
retire led to a justice who is her ideological opposite. All of which heightens
anticipation as to what Justice Breyer will do this summer.
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