Chemerinsky: Expect a truly extraordinary year at the Supreme Court
Erwin Chemerinsky. Photo by Jim Block.
Every Supreme Court term has important decisions that change the law and affect people’s lives, but some years are blockbusters in the number of high-profile, significant rulings. The October 2021 term, which begins on Monday, Oct. 4, promises to be such a year. It is the first full term with the court’s current composition.
The justices set about half the docket before they left for their summer recess, with additional cases to be decided this term to be taken through mid-January. But based on just what already is before the court, this is likely to be a year of dramatic decisions.
In Dobbs v. Jackson Women’s Health Organization, to be argued on Dec. 1, the court will consider a Mississippi law that prohibits abortions after the 15th week of pregnancy. In 1973’s Roe v. Wade, the court held that states cannot prohibit abortions before viability, the time at which the fetus can survive outside the womb. The court repeatedly has reaffirmed this and referred to it as the “essential holding” of Roe.
Viability is now regarded as being at the 24th week of pregnancy. The issue before the Supreme Court is whether to overturn Roe and allow states to prohibit abortions before viability. If a state can forbid the procedure at 15 weeks, there is no reason why states cannot outlaw abortions even earlier, such as the Texas law that prohibits abortions after the sixth week of pregnancy, or even the Alabama law that bans nearly all abortions.
The Mississippi law had been declared unconstitutional by the lower federal courts and the Supreme Court choosing to hear it at all is an ominous sign for abortion rights, as was the choice by the Supreme Court on Sept. 1 to not enjoin the Texas law. The reality is that the five conservative justices who voted against an injunction are strongly against abortion rights, and it is just a question of how far the court will go in allowing states to prohibit abortions.
In Heck v. Humphrey, in 1994, the Supreme Court held that a person convicted of a crime cannot bring a civil suit, such as for malicious prosecution, unless the conviction has been overturned. What, though, about someone who was arrested, but the prosecutor dropped all charges? Can the person sue for malicious prosecution?
That is the issue in Thompson v. Clark, to be argued on Oct. 12. Larry Thompson and his wife had a week-old baby. Thompson’s sister-in-law, who was staying with them, called 911 and said that she thought the baby was being sexually abused because of red marks on the baby’s buttocks. Emergency medical technicians came to the apartment, but left thinking it was the wrong address. Later that night, they returned with police officers. Thompson said that the officers could not enter without a warrant. The officers pushed their way in, shoving Thompson to the floor. Thompson was arrested and charged with resisting arrest and obstructing governmental administration. The baby was taken to the hospital where an examination revealed that it was diaper rash.
The prosecutor dismissed the charges against Thompson “in the interest of justice.” Thompson sued for malicious prosecution. Both the federal district court and the New York-based 2nd U.S. Circuit Court of Appeals ruled against Thompson, saying that he had not shown an affirmative indication of actual innocence.
No mechanism exists to have a court find someone innocent when charges are dismissed. Does that mean that prosecutors always can avoid liability for malicious prosecution by bringing charges and then dismissing them?
How must trial judges conduct jury selection in high-profile criminal cases? That is a key issue before the court in United States v. Tsarnaev, to be argued on Oct. 13. Dzhokhar Tsarnaev and his brother, Tamerlan, were responsible for the bombing at the Boston Marathon in 2013 that killed three people and injured hundreds. Tamerlan was killed by the police, but Dzhokhar was tried for murder and sentenced to death.
Dzhokhar’s lawyer asked for a change of venue in light of the publicity surrounding the case. The judge refused and said that care would be taken during voir dire to select an unbiased jury. The defense wanted the judge to ask prospective jurors about what they had seen and heard and knew about the case. The judge instead asked prospective jurors whether they had formed an opinion and whether they could be unbiased.
Voir dire took 21 days, during which the defense times moved to change venue four times. Each request was denied. Dzhokhar was convicted and sentenced to death. The Boston-based 1st U.S. Circuit Court of Appeals reversed the death sentence on the ground that the judge had not done enough to ensure an unbiased jury. The court of appeals also reversed based on the trial judge’s failure to allow the jury to hear evidence in the penalty phase as to a murder that Tamerlan had committed previously. That issue, too, is before the Supreme Court.
From 1791, when the Second Amendment was ratified, until 2008, not one federal, state, or local gun regulation was struck down. In the few Supreme Court cases about guns, the court said the Second Amendment means what it says: It is a right to have guns for the purpose of militia service. But in District of Columbia v. Heller, in June 2008, the court, 5-4, declared unconstitutional a D.C. ordinance that prohibited private ownership or possession of handguns. The court, in an opinion by Justice Antonin Scalia, said the Second Amendment protects a right to have guns in the home for the sake of security.
In New York Rifle & Pistol Association v. Bruen, to be argued on Nov. 3, the court will consider the constitutionality of a New York statute that restricts carrying a concealed weapon outside the home to instances where a person can show a need to do so for self-defense.
All five of the conservative justices—in their opinions on the Supreme Court or as court of appeals judges—have expressed strong support for protecting gun rights and limiting government regulation of firearms. Again, the real question is how far the court will go in this direction in this case.
For decades, the litigation in the Supreme Court and the lower federal courts addressed the question of when may the government give aid to religious schools without it being an impermissible establishment of religion. There were major cases about whether the government could choose to provide religious schools things like sign language interpreters, buses for field trips, textbooks and audiovisual equipment.
Now, though, the question has shifted to when must the government provide assistance to religious schools or the failure to do so violates the free exercise of religion. In 2017, for example, in Trinity Lutheran v. Comer, the court said that a state violated free exercise of religion when it provided aid for surfacing playgrounds to secular private schools but not religious schools.
Carson v. Makin, to be argued on Dec. 8, involves areas of Maine that are too rural to support public schools. The government, through school administrative units, provides parents funds to send their children to private schools, but it cannot be to religious schools. The issue is whether this refusal violates free exercise of religion.
State secrets doctrine
In 1953, in United States v. Reynolds, the court recognized the state secrets doctrine: a common law privilege that requires exclusion of evidence, and even dismissal of cases, when national security information might be disclosed. There are two cases on the docket this term about the state secrets doctrine.
United States v. Zubaydah, which will be argued on Oct. 6, involves Abu Zubaydah, who has been a prisoner at Guantanamo Bay since 2006. After his capture in Pakistan in 2002, but before being sent to Guantanamo Bay, Abu Zubaydah was subjected to the CIA’s “enhanced interrogation” program at several “black sites” in foreign countries. That program included, among other things, his being waterboarded 83 times in one month and being deprived of sleep for 11 consecutive days.
There is a criminal investigation in Poland where the torture allegedly occurred. Zubaydah filed suit in federal district court in Washington state to obtain discovery from two CIA contractors who apparently had information about the interrogations. The government asserted the state secrets privilege, and the district court dismissed the case. The 9th Circuit reversed and remanded the case for the district court to determine whether sensitive information could be separated from other information that would not risk national security. The issue before the Supreme Court was whether this remand was justified and appropriate.
In Federal Bureau of Investigation v. Fazaga, to be argued on Nov. 8, the issue is whether the state secrets doctrine, which is a common law privilege, is preempted by statute. The case involves Muslim men who said that their conversations were illegally intercepted. The Foreign Intelligence Surveillance Act expressly authorizes money damages for those subjected to electronic surveillance in violation of the act. The 9th Circuit said where there is a statutory right to sue it overrides the state secrets doctrine. Twelve 9th Circuit judges dissented from the denial of en banc review, and the Supreme Court granted certiorari.
These are just a handful of the cases to be heard and decided this term. It is sure to be a truly extraordinary year in the Supreme Court.
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.