Chemerinsky: Expect a momentous year ahead for the Supreme Court
Erwin Chemerinsky. Photo by Jim Block.
Conservatives look at 2022 in the U.S. Supreme Court with great anticipation, while liberals feel dread for what is likely to come. But all, on both sides of the political aisle, agree that 2022 is going to be a momentous year for the Supreme Court.
This will be the term in which there will be a clear indication of what the three justices appointed by President Donald Trump are likely to mean for the future of constitutional law. To have a sense of the significance of this for the court, it is stunning to realize that while Trump picked three justices in four years, the prior three Democratic presidents—Carter, Clinton and Obama—selected only four justices in a combined 20 years in office.
No one doubts the three Trump nominees—Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett—are conservative. But how conservative will they be? How willing will they be to overrule precedent? Will they all join Justices Clarence Thomas and Samuel A. Alito to create a reliable, staunch conservative majority, or might one or more of the Trump nominees join with Chief Justice John G. Roberts Jr. to steer the court in a more moderate, albeit conservative direction? And where will Roberts be if the five more conservative justices join together in key areas of constitutional law?
Four cases, three of which already have been argued and another which will be heard on Jan. 7, are likely to dominate the headlines in June 2022 as the court hands down the most high-profile cases of the term. And lurking in the background is the question of will he or won’t he retire that surrounds Justice Stephen G. Breyer.
No decision is more eagerly awaited than the ruling in Dobbs v. Jackson Women’s Health Organization. It involves a Mississippi law that prohibits abortions after 15 weeks of pregnancy. Forty-nine years ago this month, in January 1973, the court held in Roe v. Wade that states cannot prohibit abortions prior to viability, which is about the 24th week of pregnancy.
The Mississippi law is clearly unconstitutional under current law, but few expect the court’s majority to strike it down. At the oral argument, on Dec. 1, Roberts suggested that the justices could uphold the Mississippi law and allow states to prohibit abortions before viability, but without the court taking a position on laws that forbid abortions even earlier. But the questions from Kavanaugh and Barrett strongly indicated that they believe Roe should be overruled. No one doubts that Thomas, Alito and Gorsuch will vote to overturn Roe and allow states to prohibit all abortions.
A significant restriction of abortion rights seems inevitable, but how far the court goes in allowing states to prohibit abortions could matter enormously for countless women and certainly will further fuel efforts in many state legislatures to impose even greater restrictions on abortions.
I am not sure when views about gun rights and gun regulation hardened along ideological lines, but there is no doubt that conservatives are looking to the current court to provide much more protections for gun owners under the Second Amendment. New York State Rifle and Pistol Association v. Bruen, which was argued on Nov. 3, 2021, will provide the opportunity for the court to do so.
A New York law that is more than 100 years old prohibits having a concealed weapon in public without a permit. A person can obtain a permit only by showing that his or her safety requires it. The Supreme Court likely will decide whether there is a right to have guns outside the home and whether, and how, states can regulate concealed weapons. From the oral argument, it seemed that the majority is poised to strike down the New York law, but it is unclear how far the court will go in limiting the ability of the government to regulate guns in public.
For decades, the issue before the Supreme Court was whether the government violated the Establishment Clause of the First Amendment when it gave particular forms of aid to religious schools. There were cases about whether the government could provide audio-visual equipment or sign-language interpreters or buses for field trips to religious schools and their students. Now, though, the issue is whether the Free Exercise Clause requires the government to provide aid to religious schools when it gives assistance to private secular schools.
That is the issue in Carson v. Makin, which was argued on Dec. 8. There are areas of Maine that are too rural to support public schools. In those areas, school administrative units provide funds for parents to send their children to secular private schools; the funds cannot be used for “sectarian schools.” Two parents and two schools have brought a challenge to this, arguing that the denial of aid denies free exercise of religion.
The justices at the oral argument seemed clearly split along ideological lines, with the conservatives seeing this as impermissible discrimination against religion, while the liberal justices regarding the government has having a valid interest in using its funds to provide a secular education for all children in the state.
In December, the court granted expedited review and scheduled oral arguments to be heard on Jan. 7 in two cases involving Biden administration rules imposing vaccination requirements on workers. One is an emergency regulation that mandates employers with more than 100 workers to require vaccinations or weekly COVID-19 tests of their employees. The Occupational Safety and Health Administration created the workplace mandate as an emergency temporary standard, which can be adopted when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
On Dec. 17, the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, ruled in favor of the Biden administration and upheld the rule. The court explained that “Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace. … OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”
The other regulation was adopted by the Centers for Medicare and Medicaid Services in the Department of Health and Human Services. It requires all health care workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. Twenty-six states, all led by Republican officials, brought several lawsuits challenging this rule. Two federal courts of appeals said that the rule was invalid, while one federal court of appeals upheld it.
The Supreme Court was asked to issue emergency orders in these cases, but without even waiting for full briefing on those requests, the justices took the very unusual step of granting review on both regulations and scheduling the cases for expedited oral arguments. The issues before the court are likely to be primarily about the statutory authority of OSHA and the Centers for Medicare and Medicaid Services to promulgate the regulations, rather than the constitutionality of the rules.
This comes to the court amidst a huge political divide in the United States about COVID-19 and vaccinations. A study in December found that that four in 10 Republicans remain unvaccinated, compared to just one in 10 Democrats. In the lower courts in these cases, judges appointed by Democrats almost always voted to uphold the rules, while judges appointed by Republicans usually voted to invalidate them. Will the justices similarly divide?
Will he or won’t he?
In June 2021, a flurry of articles—including one by me—and even advertisements encouraged Justice Breyer to retire. He didn’t do so, and the pressure will be even greater for him to step down at the completion of this term. The Democrats well could lose control of the Senate as a result of the November 2022 elections. If so, no one believes that a Republican-controlled Senate would confirm a Biden nominee for the court. If Breyer wants the best chance for a replacement with his values and views, the safest course will be to retire in July 2022.
Breyer, though, has made clear that he enjoys being on the court and being the most senior justice in the liberal bloc. But he will be 84 on Aug. 15, and he saw how Justice Ruth Bader Ginsburg’s failure to retire led to a justice who is her ideological opposite. All of which heightens anticipation as to what Justice Breyer will do this summer.
It always is dangerous to make predictions for a coming year. But I know all can agree with the hope that 2022 will see an end to the pandemic and a return to normal for the Supreme Court and the country.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.