The Blockbuster Term Ahead at the Supreme Court

The Supreme Court had a tumultuous 2020-2021 term. Justice Ruth Bader Ginsberg’s death in September of 2020 threw the Court into turmoil just a week before the term started, and the rapid confirmation of Justice Amy Coney Barrett made the Court a major issue for the second Presidential election in a row. COVID-19 social distancing guidelines and safety precautions forced the Court to conduct arguments by phone and implement a new process for questioning litigants. Accordingly, the Court had a relatively quiet term: some important decisions, to be sure, but nothing earth-shattering. The same will not be said about the 2021-2022 term, which kicked off on Oct. 4. A Court returning to normalcy and a docket stacked with blockbuster cases will make this one of the most important terms in recent memory.

The 2021-2022 term will be the first full term for the Supreme Court’s new 6-justice conservative majority. It would be a mistake, though, to expect a flurry of sweeping 6-3 decisions chewing up years of precedent and ushering in a new era of originalist jurisprudence. Broadly, there are three groups of Justices on today’s Supreme Court. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor are the liberals. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas are the arch-conservatives: strictly committed to originalist and textualist judicial philosophies and reliable votes to overturn precedents they disagree with. The remaining group of Justices, Barrett, Brett Kavanaugh and John Roberts, sit in the middle. They are conservatives, but they are also more sensitive to the institutional and practical implications of the Court’s decisions.

Internal squabbling among the conservatives will be the defining dynamic on the Court this term, and the resolution of their differences will be the single most important factor in how the term plays out. Will the moderates throw caution to the wind and usher in a new, unrestrained conservative era on the Supreme Court? Or will they force the Court to chart a middle path, slowly chipping away at disfavored precedents and seeking narrow compromise decisions where consensus can be found?

The biggest cases before the Court this term focus on two of the most polarizing issues in American politics: guns and abortion. New York Rifle Association v. Bruen is the final leg in a trilogy of major Second Amendment cases before the Court over the last decade. In 2008, the Court found in D.C. v. Heller that the Second Amendment guarantees the right to carry weapons for self-defense in the home. McDonald v. Chicago incorporated the Second Amendment to the states in 2010. In Bruen, the Court will decide the degree to which the Second Amendment protects the carrying of weapons outside the home. The petitioners challenge a century-old New York law requiring most individuals to obtain a permit showing “proper cause” to carry a weapon outside the home. A decision establishing that open carry outside the home is protected by the Second Amendment could deal a blow to gun-control advocates across America.

The most consequential case before the Court this term is undoubtedly Dobbs v. Jackson Women’s Health, with oral arguments scheduled for Dec. 1. A closely divided Court has largely avoided abortion cases in recent years. The acceptance of a major abortion case might signal that originalists are ready to launch their long-awaited attack on Roe v. Wade, which holds that women have a Constitutional right to abortion before the fetus is viable. The Dobbs case centers on a Mississippi law prohibiting abortions after fifteen weeks except in cases of medical emergency or severe fetal abnormality. The 5th Circuit held that the law fails to meet the standard established in Planned Parenthood v. Casey, which prohibits abortion restrictions imposing an “undue burden” on the woman’s right to choose. In written briefs, Mississippi has swung for the fences, asking the Court to reconsider the entirety of Roe. The Court, though, will not be forced to make an all-or-nothing decision. It could begin to chip away at abortion precedent by weakening the Casey standard, or find five votes for a narrow compromise decision to buy itself more time on the abortion question. Once again, the institutionally-minded conservatives will be in the driver’s seat. How far are they willing to go? The answer will decide the course of the Supreme Court’s 2021- 2022 term.