Trump Riot Appeal Bid, Biden Vaccine Add to Seismic Court Term

The Supreme Court starts 2022 with a special session on Joe Biden’s vaccine mandate, joining a blockbuster docket that could also see affirmative action and Donald Trump’s Capitol riot dispute with congressional investigators go before the justices.

The court with its fortified conservative majority has a small window in January to add new cases to its argument calendar. Already, expected rulings on abortion, gun rights, and religious freedom highlight how closely the court’s work this term has become bound to disputes dividing the nation. And questions swirling about the court’s independence from politics has upped the tension.

“This is almost certainly going to be the most important Supreme Court term in decades,” said David Cole, of the progressive American Civil Liberties Union. And it’s “going to be a test of the court’s legitimacy.”

Vaccines, Trump

The justices returned to the courtroom in October after more than a full term of remote sittings and kicked off a big-ticket series of in-person arguments. Allowing the most restrictive abortion law in the nation to remain in force in Texas capped early decisions.

Perhaps feeling internal and outside pressure over its practice of disposing more and more appeals without argument or explanation, the court also moved a handful of cases off its emergency “shadow docket” to its merits docket for full consideration.

Those included litigation over the Biden administration’s Covid vaccine policies involving large employers and health care workers. Working on an expedited basis, the court will hear argument Jan. 7 in National Federation of Independent Business v. Department of Labor, and Ohio v. Department of Labor as well as Biden v. Missouri and Becerra v. Louisiana.

Some big cases for the new year could be ones the justices haven’t agreed to take up yet. The cutoff for adding arguments to its term is typically mid-January. And major issues are on track to possibly meet that timing.

One is a request by former President Donald Trump to block release of his White House papers to a congressional committee investigating the deadly storming of the Capitol by his supporters last January, ensnaring the justices in the legal issues surrounding the riot for the first time. Lawmakers hope to expedite consideration of the case to meet the mid-January cutoff.

Brackeen v. Haaland, a challenge to the 1978 Indian Child Welfare Act, which establishes placement preferences for American Indian children to be adopted by Indian families, also awaits a grant or denial.

Another is Oklahoma v. Davis, which asks the justices to overrule a watershed ruling for American Indians that was just handed down in 2020. Notably, the ruling was 5-4 and Justice Amy Coney Barrett could now swing the decision 5-4 the other way.

Affirmative Action

More controversy that could make the docket is a pair of challenges to university affirmative action programs.

In Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the challengers say the university’s affirmative action program discriminates not just against white candidates, but also Asian students, too.

They ask the court to overrule its 2003 decision in Grutter v. Bollinger upholding limited forms of affirmative action in higher education. Like the Oklahoma tribal case, the Supreme Court upheld affirmative action programs in 2016, but the court’s 6-3 conservative majority could flip that case, too.

But Sarah Perry, a legal fellow at the conservative Heritage Foundation, said its unlikely the justices are eager to add more controversy to their docket this term, suggesting they’ll kick what it can to the term starting in October.

“It’s unlikely to me that the court would be eager to take up something like the January 6 commission until they get a chance to reassess the landscape,” Perry said.

Religion, Climate

In addition to possibly undoing the precedent legalizing the right to an abortion in deciding Mississippi’s Dobbs v. Jackson Women’s Health Organization and perhaps striking down a state restriction on concealed-carry permits in New York State Rifle and Pistol Association v. Bruen, the court will rule on whether states must subsidize religious education if they choose to support other private schools, in Maine’s Carson v. Makin.

Another involving religion clauses as well as the First Amendment is Shurtleff v. Boston. Set for argument Jan. 18, a conservative Christian civic organization Camp Constitution is asking the court to require the city of Boston to fly the group’s flag on a municipally owned pole even though it contains an image of a cross.

In the environmental space, the court on Feb. 28 will consider the EPA’s ability to regulate power plants in a bid to curb greenhouse gases, in West Virginia v. EPA.

Court Test

The ACLU’s Cole says the country should watch to see if the court breaks along traditional ideological lines in big cases, which would please political and cultural conservatives and fuel progressive and other public criticism of it as partisan, or lands in the middle on some hot-button issues. Barrett’s contention that the court isn’t “a bunch of partisan hacks” overhangs the next several months, especially.

“I think the court as an institution is very squarely at the intersection of culture and law right now,” said Perry. While the justices are supposed to be unswayed by public opinion, “as humans, I don’t think they can help but be a little bit attuned to what the public is saying about them.”