In Indiana, the rights of same-sex parents have come under legal criticism. In Mississippi, it’s access to abortion. In Pennsylvania, it’s gun control.
All three cases could go to the US Supreme Court, and the timing is no accident. Sensing the opportunity with new Judge Amy Coney Barrett tilting the court to the right, state officials are making strategic appeals and lower court justices are tailoring arguments in hopes of getting a supreme court hearing for controversial cases.
In the two months since Barrett’s arrival on the Supreme Court, a new ideological balance has already been struck in the rulings. Following a double rejection by the old court last summer of requests from religious groups to ignore coronavirus limits on the size of gatherings, the new court last month accepted such a request from a Catholic diocese and two synagogues in New York. .
“They flag houses of worship for especially harsh treatment,” the court said of the state governor’s orders, in an unsigned opinion that critics said trampled on states’ right to establish public health policies.
But for progressive legal analysts, the clearest illustration of the shift in the supreme court is in the shifting arenas of lower court cases, as conservative advocates and lawmakers steer favorite cases toward what they hope will be a hearing in Washington.
“What Barrett’s addition does is that I imagine there will be more lower court judges pushing the lines, recognizing that they probably have the green light for some of their more radical positions,” said Daniel Goldberg, legal director of The Progress Alliance for Law. Justice.
Republican state officials clearly see an opportunity. Hours after Barrett was approved by the Senate judicial committee, the Mississippi attorney general order that the supreme court review the attempted state ban on abortion after 15 weeks of pregnancy. Late last month, the Indiana attorney general I ask the court to defend the state’s attempt to prohibit both parents in same-sex couples from having their names on a child’s birth certificate.
A judge at a Philadelphia appeals court last month quoted Barrett herself in an opinion that would have paved the way for criminals to own guns. In a disagreement when he was an appeals judge in Chicago, Barrett reasoned that “civic rights” such as the right to vote or serve on a jury might be denied to criminals, but that “individual rights” such as possession of guns , no.
If the Philadelphia case reaches the supreme court and Barrett applies similar reasoning from his most powerful position, the gun lobby could win its most significant legal victory in more than a decade.
Even more important to protecting workers and the environment could be how the supreme court handles the inevitable legal challenges that will arise from new regulations introduced next year by the Joe Biden administration, analysts say.
As Donald Trump rushes to auction drilling rights at the U.S. Arctic National Wildlife Refuge, Biden has vowed to reinstate regulations that Trump removed, including emissions standards and safety requirements in place. job. Legal analysts will be watching closely how the remade supreme court handles those legal challenges.
“What worries me most are the issues that arise from the Biden administration’s efforts to issue rules and regulations to protect the health and safety of the American people,” Goldberg said.
“Obviously, those cases are not pending yet, but I think that during the Obama years, federal lower court judges were quite aggressive in challenging Obama’s efforts to protect workers and the environment. And I imagine that now with a more radical supreme court, you will see even more aggressive challenges. “
In cases still to be decided in the current period, Supreme Court justices were not as hostile in oral arguments to certain rights and protections as progressive analysts feared.
The justices seemed skeptical that the removal of one part of Barack Obama’s healthcare law meant the entire law should be scrapped, as Republican lawyers argued. Similar skepticism embraced an argument by the Trump administration that sought to exclude undocumented immigrants from the U.S. census.
But elsewhere in the past two months, the high court struck down a court order blocking the execution of a black man. convicted by a jury of whites. And court watchers were alarmed by an unusually scathing and politically charged speech last month by conservative judge Samuel Alito.
In a speech to federalist society, Alito criticized abortion rights, complaining that dissent on same-sex marriage had been stigmatized, and said that Covid’s mitigation rules amounted to “previously unimaginable restrictions on freedom. individual”.
Alito filed that complaint before the court’s ruling in the New York case, which sided with the Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues that opposed restrictions on meeting sizes imposed by Governor Andrew Cuomo. to slow the spread of the coronavirus.
Critics of the court said that conservative judges ‘insistence on creating exceptions for religious groups on issues of insurance coverage for contraception through same-sex marriage had now infringed on states’ right to establish health policies. public.
Before Barrett’s arrival in court, the New York case could have been decided differently, with Chief Justice John Roberts providing a swing vote to create a 5-4 majority in favor of local officials, such as it did so in the previous Nevada and California cases.
But Roberts’ reign as the deciding court vote appears to have ended abruptly, Goldberg said.
“The difference with Amy Coney Barrett at the bank was that John Roberts was in the same position, but he disagreed in the most recent case,” Goldberg said.
“The sign of that case is that Judge Roberts is no longer the deciding vote.”
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