Abortion, guns and vaccines: 2022 looks to be momentous year for the U.S. Supreme Court

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.

To read more CLICK HERE

Louisiana governor posthumously pardons Homer Plessy of Plessy v. Ferguson fame

Louisiana’s governor posthumously pardoned Homer Plessy, the Black man whose arrest for refusing to leave a whites-only railroad car in 1892 led to the Supreme Court ruling that cemented “separate but equal” into U.S. law for half a century, reported The Associated Press.

The state Board of Pardons in November recommended the pardon for Plessy, who boarded the rail car as a member of a small civil rights group hoping to overturn a state law segregating trains. Instead, the protest led to the 1896 ruling known as Plessy v. Ferguson, which solidified whites-only spaces in public accommodations such as transportation, hotels and schools for decades.

At a ceremony held near the spot near where Plessy was arrested, Gov. John Bel Edwards said he was “beyond grateful” to help restore Plessy’s “legacy of the rightness of his cause … undefiled by the wrongness of his conviction.”

Keith Plessy, whose great-great-grandfather was Plessy’s cousin, called the event “truly a blessed day for our ancestors … and for children not yet born.”

Since the pardon board vote, “I’ve had the feeling that my feet are not touching the ground because my ancestors are carrying me,” he said.

Justice Henry Billings Brown wrote in the 7-1 decision: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.”

Justice John Harlan was the only dissenting voice, writing that he believed the ruling “will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case” — an 1857 decision that said no Black person who had been enslaved or was descended from a slave could ever become a U.S. citizen.

The Plessy v. Ferguson ruling allowing racial segregation across American life stood as the law of the land until the Supreme Court unanimously overruled it in 1954, in Brown v. the Board of Education. Both cases argued that segregation laws violated the 14th Amendment’s right to equal protection.

The Brown decision led to widespread public school desegregation and the eventual stripping away of Jim Crow laws that discriminated against Black Americans.

Plessy was a member of the Citizens Committee, a New Orleans group trying to overcome laws that rolled back post-Civil War advances in equality.

The 30-year-old shoemaker lacked the business, political and educational accomplishments of most of the other members, Keith Weldon Medley wrote in the book ”We As Freemen: Plessy v. Ferguson.” But his light skin — court papers described him as someone whose “one eighth African blood” was “not discernable” — positioned him for the train car protest.

“His one attribute was being white enough to gain access to the train and black enough to be arrested for doing so,” Medley wrote.

Eight months after the ruling in his case, Plessy pleaded guilty and was fined $25 at a time when 25 cents would buy a pound of round steak and 10 pounds of potatoes. He died in 1925 with the conviction on his record.

Keith Plessy said donations collected by the committee paid the fine and other legal costs. But Plessy returned to obscurity, and never returned to shoemaking.

He worked alternately as a laborer, warehouse worker and clerk before becoming a collector for the Black-owned People’s Life Insurance Company, Medley wrote. He died in 1925 with the conviction on his record.

Relatives of Plessy and John Howard Ferguson, the judge who oversaw his case in Orleans Parish Criminal District Court, became friends decades later and formed a nonprofit that advocates for civil rights education.

The purpose of the pardon “is not to erase what happened 125 years ago but to acknowledge the wrong that was done,” said Phoebe Ferguson, the great-great-granddaughter of the judge.

Other recent efforts have acknowledged Plessy’s role in history, including a 2018 vote by the New Orleans City Council to rename a section of the street where he tried to board the train in his honor.

The governor’s office described this as the first pardon under Louisiana’s 2006 Avery Alexander Act, which allows pardons for people convicted under laws that were intended to discriminate.

Former state Sen. Edwin Murray said he originally wrote the act to automatically pardon anyone convicted of breaking a law written to encode discrimination. He said he made it optional after people arrested for civil rights protests told him they considered the arrests a badge of honor.

To read more CLICK HERE

 

CDC: The rate of gun deaths of children 14 and under rose 50%

According to The New York Times, the Gun Violence Archive found that more than 1,500 children and teenagers younger than 18 were killed in homicides and accidental shootings in 2021, compared with about 1,380 in 2020.

The Centers for Disease Control and Prevention found in a recent report that the rate of gun deaths of children 14 and younger rose by roughly 50 percent from the end of 2019 to the end of 2020.

Researchers say the increase is a fatal consequence of rising nationwide homicide rates, untreated traumas of COVID-19, improper gun storage, and a surge of pandemic gun-buying that is putting more children into close contact with guns as either victims or shooters.

The Crime Report suggest that much of the toll is concentrated in a few dozen big cities, with Chicago, Philadelphia, Houston, and Milwaukee at the top of the list. Despite 15 states pledging nearly $700 million toward gun-violence prevention, and larger cities like Philadelphia funneling millions into violence-intervention programs, youth leadership groups and community groups, the COVID-19 pandemic interrupted many of these programs.

And while the recent school shooting in Michigan led to involuntary manslaughter charges being levied against the shooter’s parents, one of the first of such legal actions in the country, legal experts say that adult gun owners are rarely charged when their weapons are involved in shootings that kill children and teenagers.  Although incidents like the high school shooting in Michigan garner national attention, many families say that the majority of shootings, which disproportionately affect Black and Hispanic children and teenagers in poorer neighborhoods, fail to elicit wider concern.

To read more CLICK HERE

St. Louis bucks the gun violence trend

 Homicides as a result of gun violence have remained consistently high across the U.S. in 2021, after a steep increase last year during the first waves of the COVID-19 pandemic, reported TIME.

Broadly, the year-on-year increase in 2021 is not as large as that in 2020 compared to 2019. But many major cities have in fact have seen even higher numbers: As of Dec. 29, there have been over 550 homicides in Philadelphia this year, which broke the 1990 record of 503; in Indianapolis, over 250 people have been killed, more fatalities than the highest previous toll 0f 215 (which was recorded in 2020). In Washington D.C. over 200 murders were recorded for the first time since 2003. 

One city in particular, however, has experienced an opposite trend.

St. Louis, which in 2020 had its highest murder rate in 50 years, has recorded 190 homicides as of Dec. 29, which is 73 less than the 263 the year prior. And it’s not just that the numbers are lower compared to the tumultuous period of 2020, they’re lower than some pre-pandemic years as well. In 2019 the city saw 194 homicides and 205 in 2017. (The city’s population has remained statistically consistent over the years).

To read more CLICK HERE

 

ACLU: Pennsylvania bail system in need of reform

Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial is a new research report published by the American Civil Liberties Union of Pennsylvania. Documenting statewide bail practices based on data from 2016 and 2017, the report finds that unaffordable cash bail is a statewide crisis. In counties across Pennsylvania, magisterial district judges routinely set bail that people cannot afford. The report provides four recommendations that Pennsylvania’s courts can and must take on the path to reform.

      1. Magisterial district judges must follow the law;
      2. Resident judges must exercise supervisory authority over the magisterial district judges whom they oversee;  
     3. Thee Administrative Office of Pennsylvania Courts must promote transparency by analyzing bail data on a regular basis;
   4. Courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail.

To read the Report CLICK HERE

 

     

 

Presidential Proclamation for National Stalking Awareness Month

THE WHITE HOUSE
Washington, DC

All people deserve to feel safe and protected — whether in their home, at work or school, online, or in any other public or private spaces.  During National Stalking Awareness Month, we support all those who are threatened and harmed by the pervasive crime of stalking, recognize those who raise awareness and advocate for survivors, and recommit to eradicating stalking nationwide.

Stalkers employ multiple tactics to instill fear, intimidate, surveil, and exert control over the people they target.  Studies show that 1 in 6 women and 1 in 17 men have been subjected to stalking in their lifetime, the majority of whom were threatened by someone they know — often a current or former intimate partner.  Survivors often suffer physical, psychological, and social harms, such as higher than average rates of depression, anxiety, and insomnia.  Stalking also can take a serious economic toll, as those who are stalked may have to uproot their lives at their own expense to evade their stalkers, or take unpaid time off from work in order to protect themselves and their families.

In recent years, the most prevalent form of stalking crimes has involved the use of smartphones, computers, and other devices.  With schools, workplaces, and social interactions relying on virtual platforms, the risk of stalking has grown considerably.  As technology continues to advance, we must ensure that all people — especially women, girls, and LGBTQI+ individuals who are at greatest risk — can engage in online spaces freely and safely.  We must also seek accountability for individuals or systems that perpetrate or enable stalking.

Given the disproportionate impact of stalking and other forms of digital abuse on women and girls, my Administration’s National Strategy on Gender Equity and Equality includes a commitment to launch a task force to address online harassment and abuse.  This task force will be specifically focused on technology-facilitated, gender-based violence and will be charged with developing concrete recommendations to improve prevention, response, and protection efforts domestically and worldwide.

The task force will seek input from survivors, advocates, law enforcement professionals, civil and human rights groups, technology platforms, and other experts to ensure that those with expertise and lived experiences are able to directly inform these recommendations.  My Administration has also committed to developing the first-ever National Action Plan to End Gender-Based Violence, which will further our efforts to prevent and respond to stalking and other forms of gender-based violence.

This effort has been one of the central causes of my career.  To address these abuses of power — stalking, domestic violence, dating violence, and sexual assault — I wrote and championed the Violence Against Women Act nearly three decades ago to begin to change our culture and ensure that survivors of these appalling crimes receive the services and support they need.  Through the years, I have worked to reauthorize the Act several times — each time expanding its protections.  Now, I am calling on the Congress to once again reauthorize and modernize this landmark legislation with enhanced provisions to expand the way our country responds to and prevents stalking and other forms of gender-based violence.

Stalking operates in the shadows and is fueled by silence and inaction.  As we begin this new year, let us commit to shining a brighter light on this insidious crime, to broadening our support for those affected, and to ensuring that all people can live in a world free from violence and fear.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim January 2022 as National Stalking Awareness Month.  I call on all Americans to speak out against stalking and to support the efforts of advocates, courts, service providers, and law enforcement to help those who are targeted and send the message to perpetrators that this crime will not go unpunished.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of December, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-sixth.

JOSEPH R. BIDEN JR

To read more CLICK HERE

Colorado governor reduces man's sentence by 100 years

Colorado Governor Jared Polis  reduced by 100 years the sentence of 26-year-old truck driver Rogel Aguilera-Mederos, whose brakes failed, resulting in four deaths. Originally sentenced to 110 years for an offense with no criminal intent, public outcry against Aguilera-Mederos’ harsh treatment prompted the governor’s and the district attorney’s offices to reconsider the sentence, reported Jurist.

Aguilera-Mederos was driving a lumber truck on a mountainous part of Interstate 70 when his brakes gave out as he travelled downhill. The truck ran into stopped traffic and burst into flames. He was charged with four counts of homicide and several counts of assault and reckless driving.

No criminal intent was alleged, but the resulting deaths elevated the accident to a “crime of violence,” triggering mandatory minimum sentencing enhancements. Under Colorado law, the facts required the judge to order the sentences to be served consecutively rather than concurrently. District Court Judge Bruce Jones stated at the sentencing hearing that he would not have handed down such an aggressive sentence if not for the mandatory minimums.

Five million people signed a petition calling for clemency. Kim Kardashian used her platform to call for reforms to the state’s mandatory minimum laws. In response to the backlash, District Attorney Alexis King filed for reconsideration which would have been heard on January 13 if not for Governor Polis’ grant of clemency. In his clemency letter, Polis spoke about “an urgency to remedy this unjust sentence and restore confidence in the uniformity and fairness of our criminal justice system.”

Polis also told Aguilera-Mederos:

Your highly unusual sentence highlights the lack of uniformity between sentences for similarly situated crimes, which is particularly true when individuals are charged with offenses that require mandatory minimum sentences. This case will hopefully spur an important conversation about sentencing laws, but any subsequent changes to the law would not retroactively impact your sentence, which is why I am granting you this limited commutation.

Aguilera-Mederos will now be parole eligible on December 30, 2026.

Also on Thursday, Governor Polis pardoned 1,351 people in Colorado who had been convicted of possessing two ounces or less of marijuana.

To read more CLICK HERE