Below is my column in the Hill on upcoming year for the Supreme Court. The Court’s docket is likely to put the institution at ground zero of a heated election year. Major decisions on abortion and gun rights are expected by June 2022. Even with Chief Justice John Roberts denouncing attempts at “inappropriate political influence” on the Court, the threats of Court packing and other measures are likely to become even more shrill as these decisions rollout in the new year.
Here is the column:
The late Justice Ruth Bader Ginsburg once observed that “it’s hard not to have a big year at the Supreme Court.” However, there are some years that are bigger than others. That’s what 2022 is likely to be.
The court has accepted a series of transformative cases with few available exit ramps. It recently added to that list.
In other words, it is likely to issue historic rulings on abortion, gun rights and an assortment of other issues.
The fact that the Supreme Court is going to hand down such decisions in a major election year is also noteworthy. The court tends to be more conservative in the selection of cases before major elections, but 2022 will put the court at ground zero in one of the most heated elections in history.
For those calling to pack the court to ensure a liberal majority, the already furious commentary is likely to reach near hysteria if the conservative majority rules as expected in some of these cases in the first half of 2022.
Here’s just a partial list of what is coming in the new year:
The country is awaiting a decision by June in Dobbs v. Jackson Women’s Health Organization. At issue is whether Mississippi can impose a 15-week limit on abortions. That is earlier than previously allowed by the court, but the United States is one of only seven among the world’s 198 countries to allow abortions after 20 weeks. While the court could simply overturn Roe v. Wade and return the area to the states, it is more likely that the court will increase the authority of the states while recognizing constitutional protections for such reproductive rights. That could result in a major reframing of “previability” cases.
After Dobbs was accepted, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The court ruled 5-4 to allow the Texas law to be enforced. The Biden administration and other litigants then forced a reconsideration of that decision. The court — as expected — allowed the appeal to go forward for some of the litigants in the lower court but again refused to enjoin the law. To make matters worse, it declared the Biden administration’s appeal to be “improvidently granted.”
If Dobbs is a frightening thought for abortion advocates, New York State Rifle and Pistol Association Inc. v. Bruen is a virtual heart attack for gun control advocates. In the latest badly drafted gun law to go before the court, New York has forced a challenge that could result in a major ruling reinforcing individual rights under the Second Amendment. The case deals with the Sullivan Act of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.” Bruen is likely to reinforce rights for concealed carry permits — negating a host of laws across the country.
While not often discussed with the “matinee” cases of the term, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health. American Hospital Association (AHA) v. Becerra raises a highly technical question of a U.S. Department of Health and Human Services rule that cut outpatient drug reimbursements to hospitals. The rule is based on an agency interpretation of vague statutory provisions — an interpretation that was defended under the deference afforded to agency decisions. (Notably, the court has accepted a variety of other cases that could curtail agency authority, including West Virginia v. Environmental Protection Agency, which could also curtail efforts on climate change.)
The case is technically about outpatient care for Medicare Part B recipients; however, for some justices, particularly Samuel Alito and Neil Gorsuch, it is all about Chevron and agency deference. Chevron USA Inc. v. Natural Resources Defense Council Inc. is a 1984 administrative law case that has come to embody the role of federal agencies in not just enforcing but creating law. The “Chevron Doctrine” has insulated agency decisions for decades from substantive review, giving federal agencies an overwhelming degree of authority in our system of government. For some of us, the dominance of federal agencies has become equivalent to a fourth branch of government. The question is whether a critical mass has formed on the court to substantially curtail that decision. If so, AHA v. Becerra could be a torpedo in the water for the Chevron Doctrine.
With these and other important cases on the docket, it is hardly necessary to add anything new to such a momentous year. Yet the court is not done — by a long shot.
At the end of 2021, the Supreme Court dove into the raging debate over vaccine mandates. It ordered an expedited argument in three such cases for Jan. 7. The appeal raises the legality of the emergency temporary standard issued by the Occupational Safety and Health Administration requiring a vaccine-or-test mandate for private employers with more than 100 employees. The case, again, raises core issues of agency deference as well as federal authority in this area. Courts have split on what White House Chief of Staff Ron Klain admits was a “workaround” of the limits on the president’s authority.
The court is still mulling the case of Students for Fair Admissions Inc. v. President & Fellows of Harvard College, a Title VI case in which Harvard University is accused of rigging its admissions process against Asian American students. It’s the flip side of past racial preference cases in college admission, an area that has remained a morass of fractured or conflicting decisions for the court.
This is just a partial listing of what is coming in the new year.
It is perhaps not surprising that Democratic members of Congress and liberal groups are threatening the justices of “consequences” or even a “revolution” if they do not vote with the left of the court. Such threats, however, may backfire. Not only is Chief Justice John Roberts the most popular public official today, but even liberal justices have chafed at the claim that this is a “conservative” or biased court.
The new year will test the design of our constitutional system in insulating the court from such public pressures, even direct threats to the court or individual justices from politicians.
With some of the most important decisions coming by June 2022, there will be plenty of time to weaponize the opinions for the midterm elections.
Former President and Chief Justice William Howard Taft once observed that “presidents come and go, but the Supreme Court goes on forever.” That may be reassuring to some justices as the Supreme Court enters one of the most existential years of its history.