AMAC Exclusive – by Seamus Brennan
On Monday, for the first time since the early months of the pandemic, the justices of the United States Supreme Court convened for in-person oral arguments as the Court launched its new term. Over the next several months, the Court is expected to review a handful of highly contentious cases, and with its recently established 6-3 conservative majority—cemented by Donald Trump’s three appointees— Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the conservative legal movement has many reasons to be optimistic. Here are three of the most high-profile cases that have the potential to reshape the law, overturn controversial rulings from decades ago, and advance some of conservatives’ highest legal priorities.
Religious Liberty: Carson v. Makin
In Carson v. Makin, the Court will consider whether funds from Maine’s state tuition assistance program can be allocated to secondary schools that provide “sectarian” religious instruction. The state currently prohibits such allocation of funds, which petitioners say violates their constitutional rights and unfairly prevents them from using the funds for the schools that are the best fit for their children and families.
In 2020, the Court held in a 5-4 ruling on Espinoza v. Montana Department of Revenue that distribution of state funds to religious institutions is constitutionally protected. Writing for the majority, Chief Justice John Roberts wrote that a state “cannot disqualify some private schools solely because they are religious.” The question before the Court this December, however, is less concerned with a school’s religious affiliation than it is with providing “sectarian” religious instruction in the classroom—and it could have significant implications for religious liberty protections for years to come.
Second Amendment: New York State Rifle & Pistol Association Inc. v. Bruen
For the first time in 11 years, the Court is set to review a significant gun rights case on November 3, in which it will consider whether the Second Amendment guarantees the right to carry firearms outside the home in New York State Rifle & Pistol Association Inc. v. Bruen. This particular case will examine a New York law that places restrictions on who can carry concealed weapons. According to the Heritage Foundation, New York currently “requires its residents to obtain a license for lawful possession of a firearm, regardless of whether they plan to keep it at home or take it outside.” Moreover, “to obtain a license, a licensing officer must determine whether the applicant is of good moral character, lacks a history of crime or mental illness, and that ‘no good cause exists for the denial of the license.’”
Applicants, according to the law, must also have “proper cause” to carry a concealed handgun, whereas openly carrying a handgun is banned outright in the state. In practice, this means that most New York residents never receive a permit and are effectively banned from carrying a firearm for self-defense. Robert Nash, for example, one of the petitioners in the case, was denied the right to carry a handgun after a string of robberies in his neighborhood because he could not demonstrate a “special need” for self-defense. Accordingly, the justices will consider whether New York’s denial of concealed carry permits for self-defense violates the Second Amendment.
Prior to Justice Barrett’s appointment to the Court last October, the justices routinely refused to take up similar Second Amendment cases, signaling that the new makeup of the Court could mark a drastic shift in the scope of cases considered and arguments heard.
Abortion: Dobbs v. Jackson Women’s Health Organization
Earlier this fall, the Court made news on the abortion issue before even coming into session when it refused to block a Texas law that prohibits most abortions. Now, the Court is expected to hear arguments for Dobbs v. Jackson Women’s Health Organization, dealing with a Mississippi law in what many legal scholars consider to be the most significant potential change to Roe v. Wade since Planned Parenthood v. Casey in 1992. Dobbs would allow the Court to revisit both the Casey and Roe decisions. The focus of Dobbs is a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy, barring any medical emergencies or severe fetal abnormalities.
Mississippi argues that the Court must reassess Roe’s injunction against state-level abortion bans prior to a fetus’s viability outside the womb, citing that an unborn child’s heart begins beating after five or six weeks of gestation and that “basic physiological functions are present” after nine weeks. The Court will hear oral arguments on the Mississippi law on December 1.
For decades, the conservative legal movement has worked tirelessly to cement a majority on the Court that disavows left-wing judicial activism and champions textualist and originalist interpretations of the Constitution. Now that such a majority has been achieved, thanks in large part to President Trump, conservatives are in a once-in-a-generation position to revisit decades’ worth of left-wing judicial activism that undermined the Constitution and usurped the American people’s right to govern themselves.
This week marks a promising new beginning for legal conservatives and an encouraging moment for all those who value the Constitution. Whether this promise comes to fruition will be seen over the course of the next 9 months.
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