ANALYSIS: Supreme Court begins new term highlighted by direct challenge to Roe v Wade abortion rights


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2021-2022 Supreme Court’s term begins on Monday

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In a recent speech, Justice Clarence Thomas criticized the media and interest groups for suggesting judges do politics with their cases.

“So if they think you’re anti-abortion or something personally, they think you’ll always come across that way,” said the 73-year-old Supreme Court judge. “They think you become like a politician. That’s a problem. You’re going to jeopardize any trust in legal institutions.”


A few days ago, his colleague Justice Amy Connie Barrett was more blunt:

“My goal today is to give you confidence that this court is not involved in a bunch of partisan hacks,” she told a forum organized by Senate Minority Leader Mitch McConnell, R-Q., in Kentucky.

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In the midst of a hyper-partisan atmosphere, the issue of judicial independence may come under doubt as public confidence in the ability of the nine-member bench to rise above politics may be eroded.

Clarence Thomas emerges swiftly with questions in new Supreme Court in-person argument format

Those off-the-bench comments by judges come as the Supreme Court kicks off its new term this week, arguably its most controversial docket in decades – including hot-button issues like abortion, gun rights and religious freedom. – who will test the judicial appearance of a 6-3 conservative majority.

The justices met on Monday, with the courtroom returning for oral arguments for the first time since February 2020, when the building was closed due to the pandemic.

Barrett heard oral arguments in person for the first time since the last fall was confirmed. Testing positive for COVID-19 caused Justice Brett Kavanaugh to call in his oral argument appearance. And Thomas closed things off with the first questions of the term by grilling Mississippi’s attorney on the water rights case. It was a clear sign that he does not plan to return to his pre-pandemic silence on the bench.

Carrie Severino, president of the Judicial Crisis Network, told Granthshala News, “This is Justice Thomas’ moment as the intellectual leader of the court and thus it is fitting to ask him the first question of the new term.”

“Abortion, gun rights and affirmative action will be monumental. In those cases, especially in the case of abortion and in the case of guns, there are ways they can make decisions more broadly or more narrowly,” he said. Paul Smith, a longtime appellate attorney and professor of law at Georgetown University, said. “So part of the blockbuster nature of the word will depend on whether they really go too far and say, eliminate Roe v. Wade, or limit it in terms of abortion.”

busy dock

Among the issues already scheduled for hearing this fall:

Supreme Court judges return for personal arguments as they face a busy period of major cases

  • Gun Rights: A challenge to a restrictive New York state permit law—similar to seven other states—requiring most applicants to demonstrate “reasonable reason” to obtain a license for a publicly concealed handgun. In 2008, Justice ruled that Americans have a Second Amendment right to keep a handgun in the home for self-defense. The case comes as President Biden has issued separate executive orders addressing the “pandemic and an international embarrassment” of US gun violence.
  • Religion and school choice: Does a Maine program that prohibits families with nearby local public schools from receiving tuition assistance to send their children to religious-based schools violates the First Amendment.
  • Terrorism: A separate appeal on the death sentence awarded to one of the 2013 Boston bombers, and a Guantanamo prisoner questions his continued detention without charge. Biden is facing political pressure on both fronts: In July, he approved a moratorium on federal executions, but is still pursuing the death sentence of Djokhar Tsarnaev. The president is also currently deciding whether to close the Guantanamo prison, around the 20th anniversary of the 9/11 terror attacks.
  • And the blockbuster case of the word: abortion access, a challenge to Mississippi law that would ban the procedure after about 15 weeks of pregnancy. The state is boldly asking the court to reverse its 1973 Roe v. Wade precedent, where abortion is legal throughout the country until approximately the 24th week—the point of viability where the fetus can survive outside the womb. That appeal will be debated on December 1, with a live audio stream available to the public.
Roberts Court, April 23, 2021.  Seated left to right: Justice Samuel A.  Alito, Jr. and Clarence Thomas, Chief Justice John G.  Roberts, Jr., and Justice Stephen G.  Breyer and Sonia Sotomayor.  Standing from left to right: Justice Brett M.  Kavanaugh, Elena Kagan, Neil M.  Gorsuch and Amy Connie Barrett.  Kavanaugh was absent on the first day of his 2021-2022 term due to a case of COVID-19.  (Photo by Fred Schilling, archive of the Supreme Court of the United States)

“a [court] The ruling is going to have a huge impact on American society, no matter what,” Severino said. “Frankly, if they try to rule the middle, you’ll have resentment from the left, and grim from the right.” Concerns”. Conservative majority commitment to restrict abortion access.

Jonathan Turley: New Term Addresses Abortion, Second Amendment, Top Supreme Court Cases for Campus Speeches

More Abortion Challenges

A Granthshala News poll last week shows that a vast majority of Americans, 65%, favor keeping Roe as the law of the land. This includes the majority of Republicans in our poll for the first time. Only 28% want the ruling to be overturned.

But there is an equal split on whether abortion should be legal – 49% each.

According to the Centers for Disease Control and Prevention, more than 90% of abortions occur in the first 13 weeks of pregnancy, but a different, even more restrictive Texas law would prevent most abortions after six weeks, before many women know it. that they are pregnant. .

The High Court recently allowed the Texas law to remain in force while its constitutionality is being challenged in lower courts.

Texas law is unique in that sanctions can only be enforced through civil lawsuits.

“Private citizens enforce the law. [state] “The government has no role to play in enforcing this. So basically every Texas citizen is now a private attorney general,” said Josh Blackman, a professor of constitutional law at the South Texas College of Law Houston.

Supreme Court Justice Brett Kavanaugh tests positive for COVID-19

The Supreme Court’s 5-4 order was the most restrictive abortion right in decades, even if it was temporary, and many judges raised serious concerns about the constitutionality of the law.

out of the shadows

And it falls under the court’s so-called “shadow dockets,” time-sensitive emergency decisions that fall outside the court’s normal review procedures.

Such cases have traditionally been limited in scope — orders on appeal such as requests for a temporary halt of execution — but over a two-week period this summer, the High Court ruled on Texas abortion law separately; COVID-related federal moratorium on tenant evictions; and a restrictive Trump-era immigration asylum policy.

In this November 6, 2020 file photo, the Supreme Court is seen at sunset in Washington.  The justices on Monday heard arguments inside the courtroom for the first time in more than a year and a half.  (AP Photo/J. Scott Applewhite, FILE)

Those three orders – in which right-wing justice prevails – will have widespread impact, even if they are settled in a matter of hours or days and bypass the specific analysis of an issue through a thorough written brief, oral arguments and a signed opinion .

“Last year, the combination of the pandemic and the election meant there were just high visibility applications for emergency stays of lower court rulings – cases of churches not being allowed to meet in person, and changes in voting rules. about” an election year, law professor Smith said. “And the court was very aggressive [temporarily] Policing several lower court decisions and executive officers’ decisions regarding these issues.”

Critics call it a back-door process abused by judges to achieve desired results without full legal and public debate. Some legal scholars blame the Trump administration for bypassing lower courts and going directly to the country’s top court on issues like immigration reform. The Trump Justice Department filed more than 40 requests for emergency relief under the “shadow docket,” compared to only eight by its two immediate predecessors.

It comes as the high court may add to its merits other contentious issues in the coming months, including immigration, religious rights of death row prisoners and affirmative action in college admissions. A coalition of Asian American students says they are being unfairly discriminated against, with schools holding them to higher admissions standards than Latino and black students.

judicial politics

“The court was considered the least dangerous branch and we can be the most dangerous,” Thomas said in his recent remarks. “And I think that’s problematic.” He did not give any specific example.

More Americans now have a negative view of the work the Supreme Court is doing. According to a new survey from Monmouth University (NJ), only 42% approve and 45% disapprove. Just five years ago, the number was 49% approved, 33% disapproved.

“I think there has been a sustained effort to make the court illegal, which has gained some traction on the left,” said former Justice Department attorney Roman Martinez. “As a result of that, you see voting numbers going up. It’s real, and the court, to its credit, is defending itself in what some see as an ideological divide.”

It comes as Biden’s commission on the Supreme Court is set to release its report in the coming weeks with – but not recommendations – suggested reforms such as expanding the number of justices and implementing term limits. Some members of the commission and witnesses have complained that the High Court is out of touch and out of control.

As a sign of how far things have gone, abortion rights protesters marched to Kavanaugh’s home, angry over his vote in the Texas case. This prompted widespread bipartisan condemnation of the intimidation strategy.

One justice particularly sensitive to the image is 83-year-old Stephen Breyer, who recently spoke with Granthshala News to discuss his new book, “The Authority of the Court and the Peril of Politics.”

He said the power of the court is nurtured by public acceptance, which helps in maintaining its authority.

The oldest justice resisted calls from the left to retire over the summer and give Biden the legacy nomination. He told “Granthshala News Sunday” anchor Chris Wallace that he tries to ignore such political pressure, and instead promotes the idea of ​​a fair judiciary.

Breyer said, “I’m for everybody. I’m not just for Democrats. I’m not just for Republicans. And I’m not just because the president was a Democrat who appointed me.” “It’s a huge privilege to be in that job. And part of it is remembering that you’re there for everyone. They won’t like what you say half the time or more. But you’re still there for them.” “

Granthshala News’ Tyler Olson contributed to this report.

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