September 30, 2021 at 12:36AMMadeleine Carlisle
The nine justices of the U.S. Supreme Court will return to the bench to hear oral arguments on Oct. 4, kicking off what could be one of the most monumental terms in years.
After an unusually busy summer—in which they handed down major rulings on immigration and the federal eviction ban—the justices will hear several historic cases this fall, including ones that could have significant consequences for abortion access and gun rights.
This will be the first full term with the court’s 6-3 conservative supermajority, after Justice Amy Coney Barrett’s confirmation on Oct. 26, 2020. Court watchers are following closely for signals of how far to the right the Supreme Court will rule on hot-button issues, and how often some of the Republican-appointed justices will side with the liberals. Russ Feingold, the president of the progressive American Constitution Society and a former Democratic Senator from Wisconsin, argues that the way the court rules on key issues raised this term could determine whether efforts to do “something dramatic” to reform the high court gains momentum in Congress and the American public. President Joe Biden launched a commission in April to study possible Supreme Court reforms—including adding justices or term limits, which some progressives advocated for—but the commission has yet to publish any recommendations.
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“It’s a hugely important term,” says David Cole, the national legal director of the American Civil Liberties Union, “with some of the most contentious issues in American life today squarely before the court.”
Here are the major cases to watch this fall in the upcoming Supreme Court term.
Abortion access
On Dec. 1, the Supreme Court will hear its most significant abortion case in years, Dobbs v. Jackson Women’s Health Organization, which could determine whether the Supreme Court will go against decades of precedent and overturn 1973’s Roe vs. Wade, which established the Constitutional right to end a pregnancy before a fetus can survive outside the womb.
The case centers on a Mississippi law that bans abortion after 15 weeks of pregnancy—before viability—except in instances of medical emergencies or fetal abnormalities. In its merits brief, the state of Mississippi explicitly asks the Supreme Court to overturn its rulings in Roe and 1992’s Planned Parenthood of Southeastern Pa. v. Casey, which established that laws cannot place an “undue burden” on a person’s ability to seek an abortion. The 5th Circuit struck down the Mississippi law in 2019, and the Supreme Court announced in May that it will hear the case on the question at the heart of Roe: whether all bans on abortions before viability violate the Constitution.
The court considered a different abortion restriction just weeks ago, when it refused to block the enforcement of Texas’ anti-abortion law on Sept. 1, which bans abortions as early as six weeks into a pregnancy. The five justices in the majority stressed that their decision was a narrow procedural one and they were not ruling on the legality of the ban itself. Texas’ abortion ban could still be challenged on its merits and eventually wind its way back up to the Supreme Court.
Dobbs and the Texas case could prove pivotal turning points in the decades-long battle over abortion access in the United States. Zack Smith, a legal fellow at the conservative Heritage Foundation, says the Department of Justice wrote in an amicus brief in support of affirming Roe that the court needs to address the questions raised in the case head on. “They basically told the court… ‘Look, you either need to reaffirm Roe v Wade… or overrule it,” Smith says. “There is no middle ground here.”
Read more: Texas’ Abortion Law Could Worsen the State’s Maternal Mortality Rate
Gun rights
Another prominent case this term is New York State Rifle & Pistol Association Inc. v. Bruen, which challenges a New York state law that requires anyone who wants a concealed carry permit to first prove to the licensing authority that they have good reason for carrying the weapon, which can include self-defense. The case was filed by two New York men with the backing of a gun rights group after their applications were rejected because a licensing officer determined they had not adequately proven they needed to carry the weapons.
Read more: The Supreme Court Is Taking Up a Case That Could Impact Gun Rights For Millions
The case, which will be argued on Nov. 3, could be the most high-stakes Second Amendment case the court has heard in over a decade, since it ruled in 2008’s District of Columbia v. Heller that the Constitution grants private citizens a right to keep a firearm in their own home for “traditionally lawful purposes,” including self-defense. The court now must decide whether private citizens have the right to carry that firearm outside of their home, as well.
Separation of church and state
On Dec. 8, the court will hear Carson v. Makin, a case that could have an enormous impact on whether religious institutions can benefit from state funding. Carson deals with a state-backed tuition program in Maine, which grants tuition assistance to families in areas without public high schools so they can instead send their kids to private school. Two families, the Carsons and Nelsons, sued the state in 2018 after they were denied tuition-assistance because they planned to use it to pay for Christian private schools that would use the funding for religious instruction.
The case comes on the back of 2020’s Espinoza v. Montana Dept. of Revenue, in which the court ruled 5-4 that tax credit-funded scholarships meant to help students attend private schools cannot exclude religious institutions simply because they are religious. In 2020, the 1st Circuit sided with Maine, ruling that while Espinoza made it so religious schools can’t be excluded solely because of their denomination, they can be excluded from receiving tax-payer funding if that funding would go towards teaching religion. The Supreme Court will now evaluate that ruling and determine whether the law violates the religious freedom clauses or equal protection clause of the Constitution.
State secrets
The court will hear two cases this term dealing with the federal government’s right to invoke its state secrets privilege, which allows the government to refuse to release information in litigation if doing so poses a risk to national security.
On Oct. 6, the court will hear United States v. Zubaydah, the first case it’s heard dealing with Guantanamo Bay detainees in over a decade. The case was brought by Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, who has been detained in Guantamo Bay since 2006 and wants to subpoena CIA contractors in a criminal investigation. Prior to his detention in the U.S. military prison, Zubaydah was held in several CIA “black sites” in foreign countries and subjected to what the CIA referred to as “enhanced interrogation”—tactics that a years-long Senate investigation later deemed constituted torture. Among other tactics, Zubaydah was waterboarded 83 times in one month and confined to a coffin-sized box for over 11 days, per a Senate report.
In 2017 Zubaydah attempted to subpoena two CIA contractors who he argues knew about his detention and treatment in the early 2000s for a criminal investigation in Poland, where he was held in 2002 and 2003. But the federal government stepped in and told the district court to kill the subpoenas, citing “state secrets” privileges. The district court agreed, but upon appeal the 9th Circuit sent the case back down, directing the lower court to look again at whether state secrets could actually be invoked in this instance. The Supreme Court will now evaluate whether the 9th Circuit was wrong.
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Then on Nov. 8, the court will hear Federal Bureau of Investigation v. Fazaga, which also deals with questions of when the government can withhold information. The suit was first brought in 2011 by Imam Yassir Fazaga and two Muslim congregants at a California mosque that the FBI had an informant infiltrate in the mid-2000s. Fazaga and the congregants have sued the FBI with the help of the Council on American-Islamic Relations and the ACLU, who allege that the FBI targeted them based on their religious identity. The FBI argues that aspects of the investigation are state secrets and the case cannot be litigated without risking national security.
The Supreme Court will not address question of whether the FBI violated Fazaga’s constitutional rights, but rather if the case can be litigated at all, examining the question of whether a section of the Foreign Intelligence Surveillance Act (FISA) displaces the FBI’s states secret privileges and allows the case to move forward.
Death penalty
Several high profile cases involving capital punishment will come before the court this term. On Oct. 13, the court will hear the case of Dzhokhar Tsarnaev, who was sentenced to death in 2015 for his part in the 2013 Boston marathon bombing, which killed three people and injured hundreds. In 2020, the 1st Circuit converted his death sentence to life without parole, citing constitutional violations during his trial, and the Supreme Court will now determine whether the death sentence should be reimposed.
The case will undoubtedly draw attention because of Tsarnaev’s infamous crime, but his case also raises broader questions about procedure in capital trials. The 1st Circuit ruled that Tsarnaev’s jurors should have been asked more extensive questions about their media exposure to the bombing, and that he should have been allowed to introduce evidence that his older brother—who was involved in the bombing but killed by law enforcement—was also allegedly involved in a triple homicide years earlier. The court’s answers to these questions could impact how high profile capital trials are handled going forward, particularly in jury selection.
Read more: What Happens to the Federal Death Penalty in a Biden Administration?
On Nov. 1, the court will hear the case Shinn v. Ramirez, a procedurally complicated case that could have important implications for how federal courts approach the right to counsel. Two death row prisoners in Arizona, David Ramirez and Barry Jones, have filed for habeas relief in federal court, arguing that they had ineffective counsel during their original trials, and should not be executed. This point was never raised by their attorneys at the state post-conviction level, and the prisoners now argue it should be allowed to be raised in federal court.
In 2012’s Martinez v. Ryan, the Supreme Court ruled that prisoners whose attorneys made a mistake and didn’t raise ineffective trial counsel claims at the state post-conviction level could instead pursue those claims in federal habeas review. But although Martinez allows Ramirez and Jones to raise their claims, this case hinges on whether or not they can present evidence to support them. 1996’s Antiterrorism and Effective Death Penalty Act (AEDPA) limited prisoners from presenting new evidence in federal court if it was not already brought up in state court. But citing Martinez, the 9th Circuit ruled in 2019 that Ramirez and Jones could present evidence supporting their claims of ineffective trial counsel, because their state-appointed post-conviction attorneys had mistakenly failed to do so. The Supreme Court will now determine whether the 9th Circuit was correct, and whether AEDPA applies in instances where state-appointed post-conviction lawyers failed to produce evidence.
Also on Nov. 1, the court will hear the case of Ramirez v. Collier, which was taken up by the Supreme Court on Sept. 8 after it agreed to stay the execution of John Ramirez scheduled for later that night. Ramirez asked that his Baptist pastor be allowed to “lay hands” on him and pray out loud while he is being executed by the state of Texas. Texas rejected the request, and Ramirez filed suit in federal court in August on religious freedom grounds. The district court and the appeals court declined to halt his execution, but the Supreme Court agreed to do so until it could evaluate his claims.
The case originally came before the court on its “shadow docket,” a term referring to decisions issued outside of its regular oral argument schedule and often used for emergency motions. “It’s somewhat unusual to have a case shifted over from the shadow docket,” says Smith of the Heritage Foundation. “I think the fact that the court did this shows that they are taking religious liberty claims, in all contexts, incredibly seriously.”
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