Two weeks ago, Politico published a draft Supreme Court opinion in Dobbs v. Jackson Women’s Health, indicating that there are five justices, all Republicans, who believe that abortion is not a right protected by the Constitution.
A final ruling that’s anything like the leaked draft would have an immediate and profound effect on millions of Americans, allowing each state to decide whether women should be forced to have babies. If these justices are willing to toss out Roe v. Wade, a 49-year-old legal precedent that directly affects millions of people, it’s worth asking what else we can expect from them.
Remember, this court is unlike any other in our history. Its majority has been nurtured by an ideological movement, funded by wealthy donors who, in the name of restoring American society to a mythical past, want to change its shape dramatically.
The six Republican justices on the current court are members of the Federalist Society, a key institution in the movement, and three of them, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, joined when they were students. When Donald Trump promised to appoint only judges who would overturn Roe v. Wade, the Federalist Society gave him a list.
Senate Republicans, sometimes assisted by Maine Sen. Susan Collins, manipulated the rules to get those justices on the court before Trump left office. Now they are there for life.
Outlawing abortion is only one of the agenda items for the conservative legal movement, and although it’s the one that’s got our attention now, there are others that could soon be decided. Here’s a few cases to look out for:
• West Virginia v. EPA challenges the federal government’s ability to regulate carbon emissions under the Clean Air Act. It’s one that the court chose to consider it even though it challenges an Obama-era program that has never been implemented.
The case gets to the heart of a major conservative goal of dismantling the federal government’s ability to regulate business. Since the New Deal era, Congress has passed laws that have general language and let federal agencies work out the specifics through rule making. When the language in the statute is not clear, judges have deferred to the interpretation of experts in the agencies.
But a majority of the current court has been less willing to defer, like when they said the Biden administration couldn’t use its workplace safety authority to require that private employers mandate COVID vaccines.
Climate change was not a problem when the Clean Air Act was passed, so the court could find that the EPA doesn’t have the power to limit carbon emissions. If the court says that Congress has to specifically identify greenhouse gases as a pollutant, we can expect Big Oil-funded opposition to prevent any meaningful federal action on climate change.
• New York State Rifle and Pistol Association v. Bruen takes on the ability of state and local governments to limit carrying guns in public.
For more than a century, New York state has issued concealed-carry permits only to people who can show cause, and violations of the law are punished with jail time. New York is one of nine “may issue” states, but that could change soon.
It might seem strange to see a court decide that the right to bear arms can’t be limited by local laws that respond to local conditions, but the question of whether abortion is a medical procedure or murder should be determined on a state-by-state basis. But don’t be surprised if this court pulls off the mental gymnastics needed to reach both conclusions.
• Carson v. Makin is a challenge to a Maine law and could force taxpayers to pay for some students’ religious education.
The Maine Constitution guarantees every child a free education, which, in most cases, is provided either at a public school or at a private school that has a contract with the child’s town. The few towns that don’t have either can opt to pay tuition to a public or a secular private school of the family’s choice. This case is brought by families who send their kids to religious schools and would like the state to pay for it.
A ruling for the families would affect more than a few people in a few Maine towns. It could further weaken the constitutional prohibition of state-sponsored religion in the name of protecting its free exercise. Combined with rulings that let religious groups and individuals opt out of some laws, we can see how this court might dramatically remake the role of religion in public life.
In the next few weeks, we will get to see whether the Federalist Society and other groups that make up the conservative legal movement have gotten their money’s worth. We will also see how much power we have given to a handful of judges who are accountable to no one.
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