WASHINGTON — A year after Justice Amy Coney Barrett survived a bruising Senate confirmation battle that boosted the U.S. Supreme Court’s conservative majority to six seats, the justices began a new term that could end with landmark rulings on a closely-watched abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization, and on legal challenges to state restrictions on gun rights and taxpayer aid to religious schools.

The high-stakes docket has generated headlines promising major rulings on “Abortion, Guns and God.” And the news has sparked pro-life hopes that Roe v. Wade could soon be overturned. 

“I don’t think the court took the Dobbs case to reaffirm Roe v. Wade or Planned Parenthood v. Casey,” the Heritage Foundation’s John Malcolm told the Register. “I think Mississippi will win.”

Abortion rights-activists and their allies in Congress and the media echo this judgment, albeit with a sense of mounting alarm. 

Accusing the court’s conservative wing of advancing an extremist agenda, some want to curtail its power by expanding the number of justices and limiting their terms, and Justice Stephen Breyer, an 83-year-old Democrat appointee, is under pressure to retire so a replacement can be confirmed well before a possible GOP midterm rout in 2022.

“[A] court whose ideological balance is out of line with that of the country can find itself in dangerous territory,” warned Washington Post columnist Ruth Marcus, who argued the high court faced a “crisis of legitimacy.” 

 

Characterization Rejected

However, Mark Rienzi, a professor at The Catholic University of America law school and the president of Becket, a public interest group, rejected the dark characterization of the conservative majority’s jurisprudence.

“There is an upsurge of people shouting that the court is too political, but I think it’s that they don’t like the results,” Rienzi told the Register.

Over the past six months, four justices have sought to diffuse the gathering storm by publicly defending the court’s political independence. 

During a Sept. 16 speech at the University of Notre Dame, Justice Clarence Thomas emphasized that his rulings did not arise from “personal preferences,” but from an originalist jurisprudence that interpreted the law according to the Founding Fathers’ intentions. He acknowledged, however, that some jurists on the federal bench had adopted an activist agenda and said this practice helped explain why the process of confirming jurists with lifetime tenure had become so divisive. 

“The court was thought to be the least dangerous branch, and we may have become the most dangerous,” Thomas said. “And I think that’s problematic.” 

Justice Breyer registered his own concerns about the court’s waning credibility during a speech at Harvard Law School last April. Breyer noted that the high court’s power rests on “the public’s willingness to respect its decisions,” even when they are not popular. And he objected to proposed reforms that the Biden administration is exploring, including the expansion of seats on the court, predicting that such changes would further damage its standing. 

On top of the mounting political pressure and acrimony, the justices have also confronted additional challenges posed by the COVID-19 pandemic. 

In-person proceedings were suspended for 18 months as the court conducted its business virtually.

When the fully-vaccinated justices finally returned to their mahogany bench on Oct. 4, with live audio now available through the court’s website, one seat was vacant. Justice Brett Kavanaugh participated remotely from home after testing positive for COVID. 

 

Red Mass

Ongoing concerns about the virus’ transmission may have discouraged the justices from attending the annual Red Mass, which typically marks the start of the court’s fall term and was scheduled for Oct. 3. 

“Red Mass” refers to the color of the celebrant’s vestments for the Mass of the Holy Spirit, and in past years, as many as five justices, both Catholic and non-Catholic, have joined the congregation at St. Matthew’s Cathedral in Washington. 

This year, only Chief Justice John Roberts was present for the liturgy, celebrated by Cardinal Wilton Gregory of Washington. Archbishop Gabriele Caccia, the permanent observer of the Holy See to the United Nations, delivered the homily. 

The apostolic nuncio warned against a tendency “to exploit justice instead of deliver it” and probed the intertwined goods of justice, mercy and fraternity: Love of God and of neighbor should inform the administration of justice. 

Archbishop Caccia’s homily touched on the themes of people of faith bringing their concerns to God, but also approaching each other as true brothers, rather than as mere competitors on a judicial battlefield. Likewise, the administration of justice cannot be so neutral as to ignore the humanity of everyone affected by a particular decision.

“Justice without fraternity is cold, blind and minimalistic,” but justice joined to mercy and fraternity is transformative, said the permanent observer, citing Pope Francis’ 2020 encyclical Fratelli Tutti (Brothers All). 

Archbishop Caccia avoided any mention of Dobbs or legal abortion in general. Red Mass homilies do not address issues before the court. 

But his call for fraternity and mercy in the administration of justice will resonate with pro-life activists and legal scholars, who believe the court’s abortion jurisprudence dehumanized the unborn child and hope the justices will finally right that terrible wrong.

 

‘Legal Indefensibility’

“Dobbs is important because it frames a direct challenge to Roe and Casey, forcing the court to confront the legal indefensibility and radicalism of the Court’s pro-abortion jurisprudence,” said University of St. Thomas law professor Michael Stokes Paulsen in a column for The Public Discourse this summer. 

While Dobbs will likely overshadow every other case decided in 2021-2022, several other high-profile appeals could help define this term.

For the first time in over a decade, the justices will take up a Second Amendment case, NY State Rifle & Pistol Association Inc. v. Bruen, which could upend state restrictions on the right of gun owners to carry a concealed firearm outside the home. 

On Nov. 3, the justices will participate in oral arguments for the case, which will address whether the state of New York’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. 

Originally, two men challenged New York state’s gun law after their application for a concealed-carry permit was rejected. The National Rifle Association has stepped up to support their legal challenge. 

While most U.S. states permit licensed gun owners to carry a concealed firearm, eight states, including New York, restrict most people from doing so. 

 

Religious Liberty and School Choice

Meanwhile, religious-liberty and school choice-advocates are hopeful that a case out of Maine, Carson v. Makin, will provide an opportunity for the justices to build on last year’s ruling in Espinoza v. Montana Department of Revenue, which ruled that a state law that provided tuition assistance must be available for use at all private schools, including religious ones.

This term’s case poses a closely related question: “Whether a state violates the religion clauses or equal protection clause … by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction.”

The majority of Maine’s school districts don’t operate their own high schools, and so the state pays for students to go to public or private schools inside and outside the state. But the state education department will not cover the costs of tuition at a religious school. 

Two sets of parents who wanted to send their children to Christian schools sued the state, arguing that the law violated their constitutional rights. The U.S. Court of Appeals for the First Circuit ruled in favor of Maine, noting legitimate concerns about the use of state funds to subsidize religious instruction. 

However, Nicole Stelle Garnett, a professor at the University of Notre Dame Law School who specializes in education policy, dismissed the state’s contention that Espinoza barred discrimination based on a school’s religious “status,” but did not address laws preventing the use of public funds to underwrite religious education.

“This is a distinction without a difference,” Garnett told the Register. “For most religious institutions, including Catholic schools, to ‘be religious’ is to ‘do religion.’ The court will hopefully make clear that all religious discrimination is constitutionally odious.”

 

Another Round of Criticism Expected

As the court moves forward with oral arguments in these three cases, constitutional scholars predict the conservative justices will face a torrent of attacks. 

“No doubt they are all anticipating another, most ferocious, round of criticism of them as injecting their conservative moral views into the law this coming term, in the New York gun case, yes, but especially and above all in Dobbs,” said Gerard Bradley, a professor at Notre Dame Law School. “At the same time, they are hearing from the social conservative movement that they are expected to reverse Roe and Casey, and that failure to do so is likely to result in conservative criticism that will far outstrip that which was heard in June 2020 about the Bostock transgender-employment discrimination case.”

Bradley noted that Justices Thomas, Alito and Barrett had spoken out in a variety of public forums to defend the court’s integrity and to clarify that their rulings were grounded on a reasoned interpretation of the law, not political or personal agendas.

Last month, Alito weighed in during a separate address at Notre Dame. His comments were designed, at least in part, to counter critics who have accused the conservative wing of working behind the scenes to advance a secret and constitutionally suspect “shadow docket.”

Specifically, Democrat legislators have taken aim at a series of expedited emergency rulings over the summer. The first and most important is the court’s rejection of a petition by Texas abortion providers, who sought a suspension of the Texas Heartbeat Law. The court also ended the Centers for Disease Control and Prevention’s moratorium on evictions during the pandemic and rebuffed the Biden administration’s effort to rescind the Trump administration’s “remain in Mexico” policy for migrants seeking asylum. 

 

‘Shadow Docket’

At Notre Dame, Alito defended the court’s actions in all three cases.

“The real complaint of these critics is that we have granted relief when they think it should have been denied, and we have denied relief when they think it should have been granted,” said Alito.

“If they want to criticize us on those grounds, fine; let them make their case. But attempting to disguise their real complaint with a lot of talk about the sinister, secretive shadow docket is unworthy.” 

It’s doubtful, however, that his remarks will satisfy Democrats who organized a Senate Judicial Committee hearing on the “shadow docket,” or the high court’s liberal wing.

In her dissent on the majority’s decision to allow the Texas Heartbeat Act to remain in force, Justice Elena Kagan questioned why “an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme” was allowed to “remain in force when it is unlikely to prevail.” 

“[T]he majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend,” said Kagan.

With the oral arguments in Dobbs more than a month away, and a ruling anticipated for June 2022, Bradley does not expect the conservative wing to obtain a reprieve from the political acrimony any time soon.

“The court’s conservative justices are caught between two powerful currents of potential criticism, if not of political pressure,” he told the Register. “No matter what they do in Dobbs, they are likely to be caustically criticized.” 

But Ed Whelan, an expert on the Constitution who covers the Supreme Court on his National Review blog, “Bench Memos,” said the justices cannot allow the political circus to become a distraction and must fulfill the grave responsibilities of their office. 

“The job of the justices is to interpret the Constitution correctly, even — or especially — when that’s unpopular,” said Whelan. “The surest way for the court to lose respect is to show that it can be intimidated.”