Abortion, gun control: conservatives steer pet
cases towards supreme court with Barrett on bench
State officials are making strategic appeals and lower
court judges are tailoring arguments in hopes of gaining a supreme court
hearing for controversial cases
Tom
McCarthy
@TeeMcSee
Tue 22 Dec
2020 07.40 GMT
In Indiana,
the rights of same-sex parents have come under legal fire. In Mississippi, it
is access to abortion. In Pennsylvania, it’s gun control.
All three
cases could be headed for the US supreme court, and the timing is no accident.
Sensing opportunity with new justice Amy Coney Barrett having tilted the court
to the right, state officials are making strategic appeals and lower court
judges are tailoring arguments in hopes of gaining a supreme court hearing for
controversial cases.
In the two
months since Barrett’s arrival on the supreme court, a new ideological balance
has already come through in rulings. Following a double rejection by the old
court last summer of requests by religious groups to ignore coronavirus limits
on gathering sizes, the new court last month sustained such a request by a
Catholic diocese and two synagogues in New York.
“They single
out houses of worship for especially harsh treatment,” the court said of the
state governor’s orders, in an unsigned opinion that critics said trampled on
the right of states to set public health policy.
But for
progressive legal analysts, the clearest illustration of the change on the
supreme court is in the shifting sands of cases in lower courts, as
conservative advocates and lawmakers steer pet causes toward what they hope
will be a hearing in Washington.
“What the
addition of Barrett does is, I imagine you’ll have more of the lower court
judges pushing the boundaries, recognizing they likely have a green light for
some of their more radical positions,” said Daniel Goldberg, legal director at
the progressive Alliance For Justice.
Republican
state officials clearly see an opportunity. Hours after Barrett was approved by
the senate judiciary committee, the Mississippi attorney general requested that
the supreme court review the state’s attempted ban on abortion after 15 weeks
of pregnancy. Late last month, the Indiana attorney general asked the court to
defend the state’s attempt to ban both parents in same-sex couples from having
their names on a child’s birth certificate.
A judge on
a Philadelphia appeals court last month cited Barrett herself in an opinion
that would have opened the way for felons to own guns. In a dissent when she
was an appeals judge in Chicago, Barrett reasoned that “civic rights” such as
the right to vote or serve on a jury might rightfully be denied felons, but
that “individual rights” such as gun ownership might not.
If the
Philadelphia case goes to the supreme court and Barrett applies similar
reasoning from her more powerful perch, the gun lobby could score its most
significant legal victory in more than a decade.
Even more
important for the protection of workers and the environment could be how the
supreme court handles inevitable legal challenges that will arise from new
regulations advanced next year by the Joe Biden administration, analysts say.
As Donald
Trump rushes to auction drilling rights in the US Arctic National Wildlife
Refuge, Biden has promised to re-institute regulations that Trump threw out, including
emissions standards and workplace safety requirements. Legal analysts will be
watching closely how the remade supreme court handles those legal challenges.
“I’m most
concerned about issues that stem from efforts by the Biden administration to
issue rules and regulations to protect the health and safety of the American
people,” Goldberg said.
“Obviously
those cases aren’t in the pipeline yet, but I think you saw during the Obama
years, lower court federal judges being quite aggressive in challenging Obama
efforts to protect workers and the environment. And I imagine now with a more
radical supreme court, you’ll see even more aggressive challenges.”
In cases
yet to be decided from the ongoing term, the supreme court justices did not
appear as hostile in oral arguments to certain rights and protections as
progressive analysts had feared.
The
justices seemed skeptical that the elimination of one plank of Barack Obama’s
healthcare law meant that the entire law must be thrown out, as Republican
lawyers argued. A similar skepticism greeted a Trump administration argument
seeking to bar undocumented immigrants from the US Census.
But
elsewhere in the past two months, the high court has struck down an injunction
blocking the execution of a black man convicted by an all-white jury. And court
watchers were alarmed by an unusually acerbic and politically charged speech
last month by the conservative justice Samuel Alito.
In an
address to the Federalist society, Alito blasted abortion rights, complained
that dissent over same-sex marriage had been stigmatized and said Covid
mitigation rules amounted to “previously unimaginable restrictions on
individual liberty”.
Alito made
that complaint prior the court’s ruling in the New York case, which sided with
the Catholic diocese of Brooklyn and two Orthodox Jewish synagogues that
objected to restrictions on gathering sizes imposed by governor Andrew Cuomo to
slow the spread of coronavirus.
Critics of
the court said that the insistence by conservative justices in carving out
exceptions for religious groups on issues from insurance coverage for
contraception to same-sex marriage had now infringed on the right of states to
set public health policy.
Before
Barrett’s arrival on the court, the New York case might have been decided
differently, with chief justice John Roberts providing a swing vote to create a
5-4 majority deferring to local officials, as he did in the earlier Nevada and
California cases.
But
Roberts’ reign as the court’s swing vote appears to have abruptly ended, said
Goldberg.
“The
difference with Amy Coney Barrett on the bench was that John Roberts was in the
same position, but he dissented in the most recent case,” Goldberg said.
“The signal
from that case is that justice Roberts is no longer the swing vote.”
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