Abortion and guns are front and center as the Supreme Court heads back to the bench in November to hear oral arguments in some of the highest-profile cases of the term.
On Monday, the justices will hear back-to-back arguments in two cases, Whole Woman’s Health v. Jackson and United States v. Texas, challenging a restrictive Texas law that bans most abortions after about six weeks of pregnancy.
Two days later, the court will hear arguments in New York State Rifle & Pistol Association v. Bruen, a case that centers on the Second Amendment’s protections of the right to carry guns in public.
The cases, which deal with two of the most fraught and polarizing topics in American politics, will be handled by a court that had already stoked furious backlash and accusations of politicization even before its latest term began. Experts say the court’s conservative shift during the Trump administration may be part of the reason some of these cases are being heard in the first place.
Here’s what to know:
Abortion
The court on Monday will consider questions about the structure of the Texas law, S.B. 8, rather than grapple with the legal precedent for abortion — including Roe v. Wade and Planned Parenthood v. Casey — that the state is accused of violating.
S.B. 8 was signed by Republican Gov. Greg Abbott in May, and it went into effect in September. It bans nearly all abortions in Texas by outlawing the procedure after the detection of a fetal heartbeat, which occurs as early as the sixth week of pregnancy.
Rather than task state officials with enforcing the six-week ban, S.B. 8 delegates that power to private citizens, who are empowered to sue, for at least $10,000, anyone who “aids or abets” an abortion.
Critics call that enforcement mechanism a loophole, intended to avoid responsibility and judicial review. The Supreme Court is hearing oral arguments against the law from the Department of Justice and from a group of abortion providers, both of whom filed legal challenges against Texas officials.
Texas argued that since the abortion law is not enforced by the state, they are not the ones who should defend it in court. “No state executive official actually enforces [the law],” Texas wrote Wednesday in a 93-page brief to the high court, “making the injunction an improper attempt to enjoin a law rather than a person.”
The Justice Department wrote in its own court brief that “other states are already regarding S.B. 8 as a model” and that “if Texas is right, no decision of this Court is safe.”
The justices on Dec. 1 are set to hear arguments in another case, Dobbs v. Jackson Women’s Health Organization, taking direct aim at the rulings that have upheld abortion rights for decades.
Court watchers following along on Monday via livestream audio — a novelty of the coronavirus pandemic — will be listening closely for hints about how certain justices, including Chief Justice John Roberts, will approach Roe and Casey in that case and others in the near future.
“I think everyone will be watching the chief justice very closely,” said Jaime Santos, a partner in the Supreme Court and appellate litigation practice at law firm Goodwin.
“Of the conservative justices, he is most inclined to protect the principles of stare decisis” — the adherence to precedent in similar cases — “and most concerned about public perceptions of the Court as a fair and independent body,” Santos said.
The oral arguments over Texas’ law come less than two weeks after the court approved the two cases on a highly accelerated schedule. The rocket-docket proceedings could also lead the justices to issue rulings much more quickly than if the cases were moving at normal speed, Georgetown University business law professor Thomas Cooke told CNBC.
Abortion-rights advocates and providers in Texas asked the Supreme Court in late August to temporarily block S.B. 8 before it went into effect Sept. 1 at midnight. But the court did not respond until hours after the law took hold.
In a late-night ruling, a bare majority of five justices — including all three who were appointed by former President Donald Trump — voted to deny the advocates’ emergency request, largely on procedural grounds. Roberts sided with the court’s three liberals, writing in a dissent that “the statutory scheme before the court is not only unusual, but unprecedented.”
As a result of the 5-4 ruling, abortion providers say, hundreds of patients in Texas have been denied care, while clinics in neighboring states have been overwhelmed.
Critics, including President Joe Biden, fumed. The Supreme Court’s approval rating sank to a new low, and calls to reform the high court — already a topic of study in the Biden administration — grew even louder.
In quick succession, multiple justices, including Samuel Alito, Clarence Thomas and Amy Coney Barrett, spoke out in defense of the court. “This court is not comprised of a bunch of partisan hacks,” Barrett reportedly said in September.
That same month, the abortion providers whose request had been denied filed another petition to the high court. This time, they asked the justices to quickly take up their case challenging the law, even though litigation in the 5th Circuit Court of Appeals was still pending.
Separately, the DOJ sued Texas in federal court, winning an injunction that was then suspended by an appeals court. The agency then approached the Supreme Court, asking it to block the Texas law by vacating the lower court’s decision to reinstate the abortion ban.
The Supreme Court in late October agreed to hear both cases on the expedited schedule.
Two other cases originally set for argument on Nov. 1, Ramirez v. Collier and Shinn v. Ramirez, were rescheduled for later in the term.
Guns
Wednesday’s arguments center on a century-old New York law, which requires some applicants to demonstrate “proper cause” to receive licenses to carry a concealed handgun in public.
The case before the Supreme Court stems from a lawsuit brought in 2018 by the New York State Rifle & Pistol Association and Robert Nash and Brandon Koch.
Nash and Koch are New York residents whose applications to carry guns in public for self-defense reasons had been denied. The licensing officer who denied their requests said they “did not demonstrate a special need for self-defense that distinguished [them] from the general public.”
The petition for the Supreme Court to review the case argues that a lower court’s ruling upholding the New York law was “untenable.”
In a brief in July, petitioners argued that the language of the Second Amendment — securing “the right of the people to keep and bear Arms” — refers to two separate rights. To “keep” arms is to be able to own them, while to “bear” arms is to be able to carry them, they argued.
New York Attorney General Letitia James had argued in February that the Supreme Court should not take up the case.
“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” James wrote.
The most recent major Supreme Court decisions on guns came more than a decade earlier in District of Columbia v. Heller, when the court held that the Second Amendment protects the individual right to carry a gun for self-defense inside the home.
Last year, the court declined to issue a substantial ruling in another case about gun regulations in New York, which has some of the strictest such rules in the country. Justice Brett Kavanaugh, Trump’s second appointee, urged his colleagues to hear another Second Amendment case “soon.”