WASHINGTON — Curbing abortion rights and expanding the right to be armed in public are long-sought goals of the conservative legal movement that the Supreme Court seems poised to deliver within the next month.
The justices also could ease the use of public funds for religious schooling and constrain Biden administration efforts to fight climate change.
These disputes are among 30 cases the court still has to resolve before it takes an extended summer break, typically around the end of June. That’s a large, though not unprecedented, haul for the court at this point in its term.
June typically is a tense time at the court, where justices are racing to put the final touches on the most controversial cases. But this year, the tension seems to be even greater, with a potentially historic abortion ruling and in the aftermath of a leaked draft opinion that seems to have led to discord inside the court and heightened security concerns.
At least one of the 30 remaining cases will be decided on Wednesday, the court indicated on its website.
Slower than usual
The pace of the court’s work has been slower than usual, and it’s unclear how much that has to do with a leaked draft opinion suggesting a conservative majority will overturn the landmark Roe v. Wade decision on abortion rights and for the first time strip away an individual constitutional right.
The leak occurred in early May and Justice Clarence Thomas has suggested the breach of the court’s confidential opinion-drafting process has done serious damage to the court. “You begin to look over your shoulder,” Thomas said last month at a conference in Dallas.
Abortion and guns
With three appointees of former President Donald Trump, the court now has a 6-3 conservative majority, and abortion opponents might consider anything less than the overruling of Roe and the 1992 Planned Parenthood v. Casey decision that affirmed the right to end a pregnancy a bitter defeat.
But even short of explicitly jettisoning the abortion cases, the court is on the verge of dramatically weakening abortion rights. At issue in the case is a Mississippi law that bans abortion after the 15th week of pregnancy, far earlier than the court has previously indicated states can prohibit abortions.
Even before the leak of the draft opinion, the court seemed poised based on arguments in December to uphold the Mississippi law at the very least.
Arguments in November in a case over New York’s gun permit requirements also strongly suggested the court would make it easier to carry a gun in public, a decision that could affect many of the nation’s largest cities.
It’s not clear whether a series of mass shootings in recent weeks has had any effect on the court’s deliberations, or when to release the decision in the New York case.
Among the other significant cases awaiting decisions is a challenge from Republican-led states and coal companies that could hamstring the administration’s efforts to reduce climate-warming carbon dioxide emissions from power plants. President Joe Biden has set an ambitious goal of slashing planet-warming greenhouse gas emissions in half by 2030, and power plants account for roughly 30% of carbon dioxide output.
The justices also could rule any day in a lawsuit over a Maine program that offers tuition aid for private education, but excludes religious schools. The decision could ease religious organizations’ access to taxpayer money and fuel a renewed push for school choice programs in some of the 18 states that so far have not directed taxpayer money to private, religious education.
The court has been mum on the internal investigation Chief Justice John Roberts ordered the day after the leak and assigned to Gail Curley, the marshal of the court.
But CNN has reported that Curley is seeking affidavits and cellphone records from the justices’ law clerks. Competing theories on the left and right have suggested the leaker probably comes from among the 37 clerks, four for each justice plus one for the retired Anthony Kennedy.
The court could examine government-owned cellphones and email accounts, said lawyer Mark Zaid, who frequently represents government whistleblowers. But it couldn’t compel clerks to turn over personal devices or provide access to their own phones without a warrant, Zaid said.
But other lawyers have said the clerks, many who will become leaders in the legal profession, should willingly talk to the court’s investigators.
Zaid and others said clerks should talk to an attorney before agreeing to anything.
No audience, no performance
Before COVID-19 changed things, the court would announce its opinions in public sessions in the courtroom that sometimes produced moments of high drama. In especially closely watched cases, justices on both sides would read summaries of their dueling opinions.
But the courthouse remains closed to the public and, since shortly after the draft abortion opinion appeared, the court has been ringed by an eight-foot barrier and the streets closest to the building also have been closed to vehicles.
Barring a change, the opinions in the abortion and guns cases will be posted online, giving the public quick access, but affording no chance to hear justices state their views.
The justices like to get their work done by the end of June, though they issued their final opinions in early July the past two years. Summer teaching obligations often drive the need to get out of town. This year, it appears that only one justice has a teaching-related deadline. A George Mason University law school program in Padua, Italy, is advertising that Justice Neil Gorsuch will take part.