The New Supreme Court Term - The Joint is Jumpin’

The new Supreme Court term starts this week and some big fights are on the docket.

The first big Second Amendment case in 10 years involves a New York City law - since changed - that attempted to confine gun rights to the home and seven specific firing ranges.  Plaintiffs in the case include gun owners who want to go to other firing ranges and another gun owner who wants to transports guns between two homes.   The Supreme Court could decide to dismiss the case as moot because there’s a new law changing all of this, or use the occasion to expand gun rights.

An abortion case involves a Louisiana statute almost identical to one the Court struck down in 2016 requiring abortion doctors to have admitting privileges at a nearby hospital.   The 2016 Court said it’s difficult get the credential and it does little to make abortions safer.  This time around, the Court could follow the same logic and declare the Louisiana law unconstitutional as an “undue burden” on abortion rights, using standard analysis from the 1992 Planned Parenthood v. Casey  decision.  But the Court could affirm the judgment from the 5th Circuit below upholding the statute - opening the door to more health regulations in the abortion industry - or even overturn Roe v. Wade entirely.

Three LGBTQ employment cases are before the Court this term - two involving gay men and one involving a transgender who were all terminated from their jobs.  At issue is whether the word ‘sex’ in Title VII of the Civil Rights Act can be puffed up by the courts to include sexual orientation and gender identity even though Congress didn’t write it that way.  If the Supreme Court plays along, then employment law in these cases would get federalized and states could no longer make their own decisions in these matters.  I bet there are a lot of lawmakers around the country, who have had plenty of time to take up this issue, who wish the Supreme Court would take this problem off their hands so they don’t have to decide it or face the voters on it. 

There are three DACA cases before the Court.  It’s pretty much conceded at this point that President Trump has authority to terminate the DACA program and could do so tomorrow, even though these cases are pending.  The lower courts in these cases all agreed that the judiciary may not review an administration decision on the DACA program made for policy reasons.  The problem is the DHS memo stating the administration’s intent to wind down DACA gives a legal reason, not a policy reason, for doing so.  This is pretty arcane, but you may recall the Court split 4-4 on the legality of the similar DAPA program - Deferred Action for Parents of Americans.  It could be the Court will use the occasion to rule more broadly on whether such programs are legal in the first place. 

Finally, depending on when the 5th Circuit makes its decision, the Texas Obamacare case could be before the Supreme Court this term.  The argument follows John Roberts’ logic in the Obamacare decision in reverse.  Roberts’ upheld the individual mandate as a tax.  But the individual mandate tax has been zeroed out and, in effect, no longer exists.  The individual mandate is otherwise an unconstitutional overreach offending the Commerce Clause.  Because the mandate is now unconstitutional and was the essential linchpin of the entire law, the entire law should be struck.  Stay tuned on this one.