AMAC Exclusive – By Seamus Brennan
Though you wouldn’t know it from the mainstream media coverage, Dobbs v. Jackson Women’s Health Organization (in which the Supreme Court is poised to revisit the controversial Roe v. Wade and Planned Parenthood v. Casey decisions) is not the only case on the Court’s docket this term. Even as Justice Stephen Breyer’s retirement and the impending Dobbs decision continue to dominate the airwaves, the Court is also set to hear a number of other significant cases that could mark important victories – or defeats – for the conservative legal movement.
Most conservatives rightly recognize that the Court’s decision in Dobbs could be among the single most important legal developments in decades. But while abortion is certainly an important – literally life or death – issue, the Court is also expected to release decisions on a number of other contentious topics of great importance to conservatives, including religious liberty and Second Amendment rights.
Last December, the justices heard arguments for Carson v. Makin, in which the Court is deliberating whether funds from Maine’s state tuition assistance program can be allocated to secondary schools that provide “sectarian” religious instruction. Maine law currently prohibits allocation of funds for religious education, which the petitioners in the case claim violates their First Amendment rights and prevents them from directing the funds to schools that best suit the needs of their children and families.
In Espinoza v. Montana Department of Revenue, a similar case from 2020, the Court held in a 5-4 decision that distribution of state funds to religious institutions is a constitutionally protected right. In the Court’s majority opinion, Chief Justice John Roberts wrote that a state “cannot disqualify some private schools solely because they are religious.” The question before the Court with Carson, however, deals with “sectarian” religious instruction in the classroom, rather than Espinoza’s focus on a school’s particular religious affiliation.
According to SCOTUSblog, during the Carson arguments, the Court’s 6-3 conservative majority “appeared to agree” with the petitioners from Maine. If the Court does indeed side with the petitioners, it could mean that “state and local governments that opt to subsidize private schools would be required to allow families to use taxpayer funds to pay for religious schools.” A ruling in line with this thinking would be a significant victory for religious liberty and would go a long way toward advancing another important conservative issue, school choice.
Last November, the Court also reviewed a major Second Amendment case for the first time in more than a decade. In New York State Rifle & Pistol Association Inc. v. Bruen, the Court is considering whether the Second Amendment guarantees the right to carry firearms outside the home. New York State Rifle will examine a New York law that places restrictions on who can legally 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.” Further, “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.’”
According to the New York law, applicants must have “proper cause” to carry a concealed firearm (openly carrying a handgun is illegal in the state). Because determination of “proper cause” is left entirely at the discretion of unelected bureaucrats, most New Yorkers are denied permits and, in effect, barred from carrying a gun for self-defense. Robert Nash, one of the petitioners in the case, was denied the right to carry a firearm after a series of robberies in his neighborhood because he was, according to the state, unable to present a “special need” for doing so. In New York State Rifle, the Court will consider whether this sort of denial of a concealed carry permit—for reasons of self-defense—violates the constitutional right to keep and bear arms.
After analyzing to the Court’s November oral arguments, Amy Howe, a reporter covering the Supreme Court, predicted that “the justices’ eventual ruling might be a narrow one focused on the New York law” and thus save “broader questions on the right to carry a gun outside the home for later.” However, the case may open the door for the Court to finally address the questionable constitutionality of gun laws in places like New York, Washington D.C., and California in future cases.
Notably, prior to Justice Amy Coney Barrett’s appointment in late 2020, the High Court routinely declined to take up Second Amendment cases of this nature, which indicates that the Court’s newly minted 6-3 Republican-appointed majority could be more willing to address controversial issues like gun control.
One of the less high-profile cases – but nonetheless an important one – that the Court is hearing this term is CVS Pharmacy, Inc. v. Doe, in which the justices will consider whether policies that happen to disproportionately affect disabled Americans explicitly violate the anti-discrimination provisions of the Rehabilitation Act and the Affordable Care Act. The Court also heard a case in October relating to the Boston Marathon bomber, in which it considered whether the bomber received a fair trial.
After this slate of cases, the Court’s next term is also shaping up to be an important one: earlier this year, the justices agreed to reassess affirmative action and the role of race in college admissions – yet another hot-button issue conservatives have long been eager to relitigate.
As the nation awaits the release of what could be a series of momentous decisions, one thing remains abundantly clear: the conservative legal movement owes a debt of gratitude to former President Donald Trump for his appointment of three originalist Supreme Court justices during his four years in office. Thanks to the Trump administration, conservatives have found themselves in a once-in-a-lifetime position to restore Constitutional order in America.
What remains to be seen, however, is whether the Court’s conservative majority will seize the moment. One way or another, come summertime, the nation will be watching.