Buckle up! 2022 is going to be a big deal for the Supreme Court
The late judge Ruth bader ginsburgRuth Bader Ginsburg Roberts Calls for Judicial Independence in Year-End Report The Best Political Books of 2021 Your Guide to Political Survival for the Holiday Dinner of 2021 MORE once remarked that “it’s hard not to have a big year on the Supreme Court.” However, there are years that are longer than others. This is what 2022 will likely be.
The court accepted a series of transformative cases with few exit ramps available. He was recently added to this list.
In other words, he’s likely to make landmark decisions on abortion, gun rights, and an assortment of other issues.
It is also noteworthy that the Supreme Court will be making such rulings in an important election year. The tribunal tends to be more conservative in selecting cases ahead of major elections, but 2022 will put the tribunal to zero in one of the most heated elections in history.
For those calling for filling the tribunal to ensure a liberal majority, the already furious commentary risks reaching near-hysteria if the Conservative majority decides as expected in some of these cases in the first half of 2022.
Here’s just a partial list of what’s coming in the New Year:
The country expects a decision by June in Dobbs v. Jackson Women’s Health Organization. The question is whether Mississippi can put a 15-week limit on abortions. This is earlier than previously cleared by the court, but the United States is one of seven countries among 198 in the world to allow abortions after 20 weeks. While the court could simply overturn Roe v. Wade and return the zone to the states, it is more likely that the court will increase the authority of the states while recognizing the constitutional protections of these reproductive rights. This could result in a major reframing of business from “predictability”.
After Dobbs’ acceptance, advocates sought to impose a Texas law banning abortion after just six weeks. The court ruled 5-4 to allow Texas law enforcement. The Biden administration and other litigants then forced a review of this decision. The court – as expected – allowed appeal from some of the lower court litigants, but again refused to bar the law. To make matters worse, he said the Biden administration’s appeal was “granted out of foresight.”
If Dobbs is a frightening thought to abortion advocates, New York State Rifle and Pistol Association Inc. v. Bruen is a virtual heart attack for gun control advocates. In the latest poorly drafted gun law in court, New York forced a challenge that could result in a major ruling strengthening individual rights under the Second Amendment. The case concerns the Sullivan Act of 1911, giving local authorities discretionary power to decide who may carry concealed firearms on the basis of a demonstration of “legitimate cause.” Bruen will likely tighten the rights of concealed transport permits, overturning a host of laws across the country.
While not often discussed with the term ‘matinee’ cases, a case on file could have far-reaching impacts in a variety of areas – from the environment to financial regulations to public health. American Hospital Association (AHA) v. Becerra raises a very technical question about a US Department of Health and Human Services rule that reduced reimbursement for outpatient drugs to hospitals. The rule is based on an agency’s interpretation of vague statutory provisions – an interpretation that has been defended by deference to agency decisions. (Notably, the court accepted a variety of other cases that could limit the agency’s authority, including West Virginia v. Environmental Protection Agency, which could also limit efforts on climate change.)
The case technically concerns outpatient care for Medicare Part B beneficiaries; however, for some judges, in particular Samuel alitoSamuel Alito No Congress Should Not Codify “Chevron Deference” Give Me Freedom and Kill Yourself Overnight Healthcare – Brought to you by Rare Access Action Project – US Passes 50 Million Cases Of COVID-19 PLUS and Neil gorsuchNeil Gorsuch Your Political Survival Guide for Holiday Dinner 2021 To uphold the rule of law, US Supreme Court must act in Texas death penalty case No, Congress shouldn’t codify the “Chevron deference” PLUS, everything revolves around Chevron and the agency’s deference. Chevron USA Inc. v. Natural Resources Defense Council Inc. is a 1984 administrative law case that now embodies the role of federal agencies not only in enforcement but also in creating the law. The “Chevron Doctrine” has isolated agency decisions for decades from substantive scrutiny, giving federal agencies an overwhelming degree of authority in our system of government. For some of us, the dominance of federal agencies has become the equivalent of a fourth branch of government. The question is whether a critical mass has formed within the tribunal to drastically reduce this decision. If so, AHA v. Becerra could be a torpedo in water for Chevron Doctrine.
With these and other important cases on the agenda, there is little need to add anything new to such an important year. However, the tribunal is not finished – by far.
At the end of 2021, the Supreme Court immersed itself in the raging debate over vaccine mandates. He ordered expedited argument in three of those cases for Jan. 7. The appeal raises the legality of the temporary emergency standard issued by the Occupational Safety and Health Administration requiring a vaccine or test warrant for private employers with more than 100 employees. The case, again, raises fundamental questions of deference from the agency as well as federal authority in this area. Courts are divided over what White House chief of staff Ron klainRon KlainExperts Says COVID-19 Cases Don’t Tell the Full Story Democrats like what they saw in Harris-Charlamagne God Swap Democrats face tough choices on Biden plan after Manchin setback MORE admits was a “workaround” to the limits of the president’s authority.
The court is still considering the 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. This is the flip side of previous cases of racial preference in college admission, an area that has remained a quagmire of fractured or conflicting decisions for the court.
This is only a partial list of what is happening in the New Year.
It is perhaps not surprising that Democratic members of Congress and liberal groups threaten judges with “consequences” or even “revolution” if they do not vote with the left of the court. Such threats, however, can backfire on you. Not only is Chief Justice John Roberts the most popular public official today, but even Liberal judges have resented the claim that this is a “conservative” or biased tribunal.
The New Year will test the design of our constitutional system by isolating the court from such public pressures, even direct threats against the court or individual judges from politicians.
With some of the most important decisions to come by June 2022, there will be plenty of time to arm opinions for the midterm elections.
Former President and Chief Justice William Howard Taft once remarked that “Presidents come and go, but the Supreme Court drags on.” This may reassure some judges as the Supreme Court enters one of the most existential years in its history.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.