By Janette Ansolabehere
We are approaching the final release of several major Supreme Court cases, among which are cases that could gravely affect our democracy. The Supreme Court has already released opinions in cases of great interest to Democrats, including opinions that allow for President Trump to remain on state presidential election ballots, an opinion reversing the federal ban on bump stocks passed during the Trump administration following a mass shooting in Las Vegas which resulted from the death or injury of over 1,100 people, an opinion finding President Biden's executive decision canceling most student loan debt as exceeding the scope of executive orders, etc.
The basis for the reversal of the federal ban on bump stocks was the statute's definition of a "machine gun" as a gun that can fire successive rounds with one continuous pull of the trigger. While a bump stock can fire as almost as many rounds as a machine gun in the same time period, the shooter has to pull the trigger for each round fired. The bump stock modification allows the shooter to pull the trigger much faster. The Supreme Court concluded that given the definition of a machine gun, a weapon equipped with a bump stock doesn't meet the definition. Today, ten states have passed laws banning bump stocks.
Last week, the court released an opinion concerning the sale of abortion drugs. The original case was brought by a group of doctors who opposed abortion. They argued that FDA approval of the drug and the subsequent approval for inducing abortion was improper. The group alleged that the drugs had too many side effects, which resulted in women requiring hospitalization. The lower courts had ruled in favor of the group. The FDA and the manufacturer of the two drugs appealed to the Supreme Court. The court unanimously ruled that the Doctors' Group lacked the standing to bring the original case and reversed the lower court's decision.
Yesterday, the court released a case out of Texas of great interest to survivors of domestic violence: whether a person who is subject to a domestic violence restraining order may possess a firearm. In many states, including Texas, a person who has a domestic violence restraining order issued against them must turn over any weapons that they possess to the police, pending trial on the charge(s). Several lower courts have recently overturned a federal law banning a person convicted of domestic violence from possessing a firearm, including the Fifth Circuit of Appeals. In 2022, the Braun case court held that assessing whether a person can be deprived of gun possession by the state or the federal government must be determined "in light of early American history." In an 8-1 opinion, the court upheld the Texas law. The court clarified some of the ambiguity resulting from the Braun opinion. John Roberts wrote for the majority that the court's Second Amendment cases "were not meant to suggest a law trapped in amber." Instead, he explained, courts considering the constitutionality of restrictions on gun rights must determine "whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances." In a concurring opinion, Amy Coney Barrett wrote, "a requirement of "overly specific analogs," describing "serious problems" that would flow from such a rule. It would, she argued, require "21st-century regulations to follow late 18th-century policy choices, giving us 'a law trapped in amber.'” (1)
Of the remaining cases for which opinions are to be released, the most anticipated and important is the case concerning presidential immunity. Interestingly enough, of the majority of Americans polled, at least 75% believe that presidential immunity should not be as broad as Donald Trump has claimed. Based on prior US Supreme Court opinions, it would seem that Donald Trump’s actions attempting to overthrow the election results by courting or intimidating election officials while in office would not fall under presidential immunity.
However, legal experts have expressed concern that the liberals only have a three-justice representation in the court and that justices such as Thomas, Kavanaugh, and Alito appear inclined to accept the arguments presented by Trump’s attorneys. However, Amy Coney Barrett seemed troubled by the scope and tenor of Trump’s arguments. Court watchers believe that the Supreme Court will send the case back to the Court of Appeals for further evaluation, thus punting the issue down the road. We will have to wait and see.
Another major case awaiting an opinion concerns the obstruction convictions of individuals involved in the January 6, 2020, attack on the Capitol in an attempt to stop certification of the election results. In some recent cases, the court has been limiting the scope of the federal obstruction statute which was originally passed after the crash of Houston based Enron. Based on the rulings in those cases, along with the justices’ questions during oral argument, it is possible that the court will find that most of the cases arising from the January 6th attack on the Capitol do not fall under the federal obstruction statute which would result in the reversal of at least half of the previous convictions, and further reduce the chance of convictions in the criminal cases still pending trial.
Another important abortion-related case concerns an Idaho law that imposes a nearly total ban on abortion. The issue is whether a federal law that requires hospitals to provide stabilizing care to patients overrides the Idaho law when a pregnant woman presents with pregnancy-related severe conditions. Idaho doctors have been faced with pregnant patients coming to emergency rooms in need of immediate care, including abortion due to medical issues such as an ectopic pregnancy (fetus implants outside of the uterus), death of the fetus in utero, the danger of death posed to the mother by complications such as loss of amniotic fluid, severe eclampsia, etc. Previously, when faced with issues of this nature where the woman’s life was at risk if the pregnancy was not terminated, doctors would perform an abortion. Because of the severe restriction imposed by Idaho’s abortion law as well as its vague language regarding any exception, Idaho doctors have been afraid to go ahead with abortions even in the most serious cases. A similar situation has resulted in Texas. In both states, OB/GYN doctors have closed their practices or moved to other states. Should the Supreme Court rule in favor of the federal law, then Texas would be affected because Texas abortion laws have caused similar issues with Texas doctors.
A major social media case is pending involving Florida and Texas laws that would prohibit large social media companies from banning or removing posts on the views expressed in the posts. The proponents of these laws assert that protecting the right of conservative free speech is necessary. Some issues raised were posts regarding COVID-19 COVID vaccines, election fraud, etc., deleted by social media companies. In 2022, in a 5-4 decision, the Supreme Court temporarily blocked the Texas law from going into effect while the appeal challenging the Texas law moved forward. However, based on prior decisions and the current court's conservative balance, it is possible that the court will uphold both the Florida and Texas laws.
Finally, there is a case involving homeless people. The issue is whether an Oregon law banning homeless people from sleeping or camping outside violates the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment. If the court upholds the Oregon law, we can expect other states to enact similar laws.
(1) Amy Howe, “Howe on the Court,” June 21, 2024 quoting Coney Barrett’s opinion
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