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:
Abortion
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.”
Gun rights
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.
Agency deference
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.
New cases
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
Rank-and-file gun control advocates support gun control due to the belief that gun control will keep them safe from the street thug and the gangbanger.
But as they have seen for the past one and a half years, the same people who would enforce gun control laws have no interest in locking up the street thug and the gangbanger.
How much support for gun control laws is there?
How much support for gun laws is there…..about forty million people purchased guns this year…..just more than Ten Percent of the American Population.
That is THIS Year alone!
Gun Banners are very much in the minority.
As the Folks understand the Left’s Liberal treatment of dangerous criminals fails to deter, prevent, or effectively prosecute crime….more yet shall see the real need to be able to defend themselves and they shall not be looking for non-lethal means of doing so.
Just as in the old days where the “Militia” were armed with weapons in common use by the Regular Army…..the same notion applies to being armed with the same weapons being used by the violent criminals today.
The Thugs use firearms…..then you need firearms to defend yourself from their violent attacks.
The Constitution may have said we are Free…..but Sam Colt made us equal.
If 2022 starts getting to you, just click on Dougie.
ABORTION – States legislate the legality or criminality of abortion, in the complete absence of constitutional rights for such.
GUN RIGHTS – The right of the people to keep and bear Arms, shall not be infringed by any level of government.
AGENCY DEFERENCE – Article 1, Section 8, prohibits any and all regulation, excepting only that of the value of money, commerce to preclude favor by one state over another, and land and naval Forces.
NEW CASES – OSHA, HHS et al. cases are frivolous and moot, and constitute violations of the severe Article 1, Section 8, limitations and restrictions on any and all regulation other than money, commerce and land and naval Forces. Extant unconstitutional regulations cause the structure of the ostensibly constitutional American government to precisely replicate that of the former Soviet Union, China, North Korean, Vietnam and Cuba, all communist dictatorships which strictly adhere to the Communist Manifesto.
_____________________________________________________________________
Who doesn’t know this?
Who has provided any citation as refutation?
That communists (liberals, progressives, socialists, democrats, RINOs) in America desire a particular outcome, does not make it constitutional.
No principle of the Communist Manifesto carries any weight or force in the United States of America – central planning, control of the means of production, redistribution and social engineering are unconstitutional.
The literal, obvious, clear, verbatim meaning of the words of the Constitution hold dominion.
Please provide a citation and a legal basis for these unconstitutional positions.
Daniel, I like your list. When the opinions come in you can post the entire list and see if your predictions were proven correct. Correct or not, you demonstrate an understanding of the options of the court and the people that reside there.
George… If only it was this straight forward. All we need to do is tune into Cspan when our government makes oral arguments against us Friday as against our own living breathing individual. It’s over. If we can’t maintain that case none the other cases even matter…if you don’t have the right to self defense against a crony capitalist worthless vaccine….why bear a gun. It’s over for America when we hear our own govt argue against us on Friday. They declare war in open court.
I will start the new year with a lawyer joke:
A doctor and a lawyer were talking at a party.
Their conversation was constantly interrupted by people describing their ailments and asking the doctor for free medical advice.
After an hour of this, the exasperated doctor asked the lawyer, “What do you do to stop people from asking you for legal advice when you’re out of the office?”
“I give it to them,” replied the lawyer, “and then I send them a bill.”
The doctor was shocked, but agreed to give it a try.
The next day, still feeling slightly guilty, the doctor prepared the bills.
When he went to place them in his mailbox, he found a bill from the lawyer.
“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.”
***********************
Judging by defections, retirements and polling, Roberts’ tormentors aren’t likely to hold any reins of power — save one — come the second Wednesday in November. Let freedom ring!
Federal Judges should be accountable to the citizens and be elected after serving during their initial appointment. No way these jobs should be lifelong appointments.
Golden Country, I ask this question with all respect: Do you really not see how that would simply turn then into politicians? How do you personally attend to the reason for which life-long appointments exist in the first place, that being independence to interpret the law based purely on the law as opposed to whatever political party happens to be in office at the time?
Andrew, Unfortunately federal courts already base their decisions on politics. No law is black and white and its always open to interpretation. If one assumes that judges are independent then why the concern. There needs to be some accountability to the people.
I think the Court will move in the right direction but without a stark break:
1. Abortion. Roe will not be overturned completely. A woman’s right to choose will remain. But viability will be replaced by something else, such as reasonable time to consider and make a choice. The rule will uphold the Mississippi law but invalidate the Texas law.
2. Guns. “Proper Cause” will be held to be too vague. Left open will be whether specific rules that leave less discretion can remain.
3. Chevron. Perhaps here the Court will act decisively, saying that it is up to the judicial branch, not the agency that makes the rules, to decide whether the rules are authorised by a statute. This is a crucial issue for the disruption of the administrative state, but one the Court may feel it can deal with in full because it is not part of the politically charged culture wars.
4. Vaccines. The Court will apply the major question doctrine to conclude that it is likely the plaintiffs will succeed on the merits because the relevant statutes do not clearly and specifically authorise the actions taken. It is possible, however, that they may find a way to distinguish for example the OSHA case from the health facilities case. The Court may also adopt an even narrower approach, relying instead on the inadequacy of procedures under the APA.
5. Affirmative Action. They will try and duck this issue, which hey really need to resolve. The progressives are running rampant in using race as a criterion for all sorts of things, both in government and in the private sector. It should be brought to an end.
“It should be brought to an end.”
It should have been “brought to an end” back when O’Connor had a chance to do so.
Why have you omitted your/their citations for the preceding incoherent anti-constitutional word salad?
What exactly is your perception of the meaning of these words of the English language: Shall not be infringed?
Try reading the relevant elements of the Constitution; try adhering to those words verbatim without illicit arbitrary revision.
A particular “class” of society has some nebulous power to modify the Constitution while circumventing the amendment process?
Have you noticed? The Founders provided the resolution for the bit of abuse of power, usurpation of power and subversion and nullification of fundamental law you referenced?
__________________________________________________________________________________________________________________________________________
Article 2, Section 4.
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
___________________________________________________________________________________________________________________________________________________________
They also proffered a suggestion for addressing those who deny constitutional rights, freedoms, privileges and immunities to Americans.
___________________________________________________________________________________________________________
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
– Declaration of Independence, 1776
Daniel: I mostly agree with you on abortion, Chevron,and vaccines. As to Chevron, as I previously alluded to, the case looks like Swiss cheese now, so I would sure like to see the Court summarize all its “variations on a theme of Chevron.” As to abortion, back in Nov/Dec, I essentially made the same comment as you–excepting that I don’t think a “viability” criterion will be replaced, but rather, better merged with “time to choose” that is more reflective of 50 years of medical science since Roe.
Now that we have 6 of our people on the court it is time to make liberals cry!
That is exactly what is wrong with SCOTUS now…your people…….they are not judges they are right wing poltical operatives!
By right wing, you mean adhere closely to the text and tenor of the Constitution? True!!
Or you can cite a case or two the “right wing Justices got horrendously wrong.
It will be an interesting year
@S Meyer re: activist court That is a mistaken preference for anyone who wants a literal interpretation of the Constitution enforced. It’s similar to the Senate filibuster question for Democrats – do you really want to give that big a stick to your opponents to beat on you with when their turn comes (and it will inevitably come)? Falls under the “be careful what you wish for” caution. NTM that a conservative court will by definition be minimally active, but a liberal/progressive Court (particularly a packed Court thus constituted) will acknowledge no boundaries to their authority.
The current SCOTUS isn’t conservative; it’s radical and reactionary.
Of course, it is.
That’s why we have matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc., and every other product of the Communist Manifesto imposed on what was once free America.
Some Justice you are! How do you explain the unanimous decisions the current Court has issued?
You might start reading what Professor has provided you in the past in his many Blog entries on that matter.
You do read don’t you? If you do….do you comprehend the written word?
Not much evidence of that in your posts.
but a liberal/progressive Court (particularly a packed Court thus constituted) will acknowledge no boundaries to their authority.
Bravo! You have succinctly identified the real danger.
@monumentcolorado re: Garland – ditto. I have an occasional issue with McConnell, but we all owe him a vote of thanks for keeping that despicable d-bag off the court.
The left prefers a Supreme Court that is activist because the left is naturally authoritarian. It is much easier to appoint five unelected justices to legislate than to convince 535 elected legislators to vote for legislation.
re: S. Meyer
Conservatives like a so-called “activist courts” with rulings like “District of Columbia v. Heller” – that’s the ruling that greatly expanded rights for gun owners overturning local gun-control laws.
Here’s a puzzler for everyone: does the “Citizens United” ruling (that grants corporate-citizens the same rights as human-citizens) supersede the “Kelo v. City of New London” ruling? In Kelo that equal corporate-citizen was allowed to take property from a human-citizen. Using a 14th Amendment test, wouldn’t the humans have equal rights? Sounds a little authoritarian to me.
“Conservatives like a so-called “activist courts” with rulings like “District of Columbia v. Heller” – that’s the ruling that greatly expanded rights for gun owners overturning local gun-control laws.”
Those rights existed when the Constitution was written. It is the legislature that is supposed to write the laws, not the Supreme court. The left made some headway on #2 and then lost it. What is wrong with the left doing things in a legal and appropriate fashion?
“Kelo v. City of New London” ruling? In Kelo, the equal corporate citizen was allowed to take property from a human citizen. Using a 14th Amendment test, wouldn’t humans have equal rights? Sounds a little authoritarian to me.”
AZ, Kelo sounds very authoritarian to me, but my memory tells me that it was the Liberal justices who approved taking property from a human citizen.
You seem to be siding with the conservative justices on Kelo. When we deal in facts, I think we have more common agreement. Many things you say regarding basic theory seem agreeable to me. Sometimes we differ on the facts, sometimes policy issues because they were only partly addressed.
Here’s a puzzler for everyone: does the “Citizens United” ruling (that grants corporate-citizens the same rights as human-citizens)
Citizens United prevented the publishing or releasing of works that might influence elections.
Just to bush up those people that have had no civics eduction at all, and take their info from the propaganda media, The !st Ammendment starts with “Congress shall make not law…”
So what happened with Citizens United? Congress passed a law curtailing speech. Your attempt at yelling SQUIRRLE, with the ‘human citizen/corporation’ slight of hand is a big failure in judicial ruling analysis.
Don’t be to sure about that. Who brought us the anti-car theft. Act? Who brought us the 5 page real-I’d? But for these 20 pages of law….we the people could be free. But states went along everyone went along now you and me wear a noose. By these laws. Deference and maybe….unintended consequences….it was intended…no doubt…research I’d.me and idemia and your stats dmv and title system. It is what will enslave us to social credit scores…combine with our already credit scores. We are turn key to be like China ….thank our masters and scotus damn difference!
Jaelyn, even a broken clock is correct twice a day.
“Don’t be to sure about that. Who brought us the anti-car theft. Act?”
I am not sure what you are trying to point out. Some of the above response seems to be miswritten.
When one looks at the benefits of any program, one might find that what they know about the program seems good. The problem is what is unknown. If you are not familiar with Bastiat, you might want to read his known and unknown essay. It is simple and easy to understand but tells us a lot about the world we miss.
One other item I would like to point out is that something done for the people might be good, but one always has to consider if there wouldn’t have been a better way of doing things that made the good better and the bad less plentiful.
Pack the Court with wolves.
Imagine if that partisan hack Merrick Garland was on the court for life instead of at Justice for 4 years.
Folks, we dodged a bullet.
By “folks”, I mean all Americans, not just conservatives.
Garland is turning out to be partisan, mendacious, and a man of poor judgment.
Not a man to guide the nation.
mmc:
He couldn’t “guide” a lemonade stand with one employee.
No wonder Taft wanted both to be President and Supreme Court Chief Justice!