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After Texas Abortion Ruling, Progressives Brace for SCOTUS Term

Sept. 3, 2021, 7:35 PM

There was no question that progressives would struggle for “wins” in the next Supreme Court term, but the latest conservative-majority ruling allowing a Texas law restricting abortions to go forward signals that things could be even harder than expected.

While the court’s liberals were able to convince Chief Justice John G. Roberts to join their side, five conservatives went the other way in the midnight order that raised new questions, including Roberts’s influence and ability to stake out compromise and take the court out of the political spotlight.

After successfully defending against some of the most conservative outcomes last term, this summer has been unusually tough on liberals. The court has undone efforts through the same expedited “shadow docket” process as the Texas case to ease evictions during the pandemic and reinstate the Trump-era immigration policy known as “remain in Mexico.”

“The court has shifted its direction in dramatic ways to the right,” said University of California, Irvine, law professor Michele Bratcher Goodwin, such that things labeled “conservative” 30 years ago are now considered median rulings by this court. “The normalcy of that turn to the right"—at all levels of the judiciary—"is deeply concerning.”

She added that Wednesday’s ruling was a troubling prelude for liberals on the future of the constitutional right to an abortion heading into full consideration this fall of a Mississippi case, Dobbs v. Jackson Women’s Health Organization. But that issue isn’t the only one among the hot-button and lesser anticipated cases where a liberal or even moderate ideology might fall short.

Guns, Affirmative Action

Also on the docket is the Second Amendment case, New York State Rifle & Pistol Association Inc. v. Bruen, a potential blockbuster that seeks to extend protections for gun owners outside of the home. And the justices also have signaled a willingness to readdress the availability of affirmative action programs in Students for Fair Admissions Inc. v. President & Fellows of Harvard College. That case challenges Harvard’s us of race as one factor in admissions.

Among the less heralded issues before the court starting Oct. 4 are state funding for religious schools, an equal protection challenge to the exclusion of Puerto Ricans for Social Security benefits, and a pair of cases on the federal government’s ability to withhold information under the state-secrets privilege.

The court also is set to consider criminal cases that may prove divisive.

For example, the justices will hear argument on Nov. 1 in Shinn v. Ramirez, a procedural dispute that could bar defendants with ineffective lawyers from getting relief, including a potentially innocent man facing execution. On Oct. 13, the court will hear argument in the case of Boston Marathon Bomber Dzhokhar Tsarnaev, as the Justice Department seeks to reinstate his death sentences.

Northwestern law professor Tonja Jacobi says it is important for progressives to pay attention to these under-the-radar cases as well as the big-ticket issues.

She pointed to Houston Community College System v. Wilson , a First Amendment case that could cut back on legislative power, and American Hospital Association v. Becerra, an administrative law case that could undo the way court’s review agency actions.

While the public tends to focus on the higher-profile cases, “in terms of the average person and how their life is affected, they are affected 100 times a day by government decisions,” Jacobi said, ranging from where you can park your car to how safe it is to eat at a particular restaurant to licensing requirements.

But “they don’t get the same attention because they aren’t these big declarations,” she said.

Fifth Vote

In all those cases, the Supreme Court’s liberal bloc will have to find allies in their conservative colleagues.

Prior to the confirmation of President Donald Trump’s third Supreme Court nominee, Justice Amy Coney Barrett, on the eve of the 2020 presidential election, liberals needed to sway just one of their conservative colleagues.

Liberal justices often looked to Roberts, who, while certainly conservative, tends to seek outcomes that would avoid drastic changes in the law and the public scrutiny that comes with it.

Now, with the solid 6-3 conservative majority, Justice Brett Kavanaugh may be the other conservative liberals might want to focus on.

There are no longer enough conservatives—like Anthony Kennedy and Sandra Day O’Connor, who were pivotal votes to uphold Roe v. Wade—willing to cross over on reproductive rights and other progressive issues, Goodwin said.

That, and the reality that it takes five justices to win a case, means liberals have little they can do to stop conservative rulings. The best option may be to vigorously dissent and draw attention to opinions they think go to far.

“The more fuss they make when the court just throws out decades and decades worth of jurisprudence, the more costly it is for the justices,” Jacobi said.

It may not change any votes, but it may convince them not to go as far to the right, she said.

Justice Sonia Sotomayor does this a lot, Jacobi said.

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” Sotomayor wrote in the court’s latest abortion ruling.

And Goodwin said there’s something to be said for writing for future courts—what she called “jurisprudence in exile.”

She noted that Justice John Marshall Harlan’s 1896 dissent in Plessy v. Ferguson “really served as the foundation for Brown v. Board of Education.”

—With assistance from Jordan Rubin

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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