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Three Supreme Court Cases to Watch Beyond Abortion Rights

The Court is considering cases about the Second Amendment, EPA regulations to limit climate change, and the separation of church and state.

This will be the first full Supreme Court term with a conser­vat­ive super­ma­jor­ity. While opin­ions have trickled out over the course of the year, June is when the Court tends to issue its biggest decisions, and this year will be no differ­ent.

With the leaked draft opin­ion in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion, the Supreme Court appears poised to over­rule Roe v. Wade — and nearly 50 years of preced­ent — slam­ming the door on protect­ing abor­tion rights under the federal Consti­tu­tion. It is hard to over­state the draft opin­ion’s radic­al­ism: it over­rules a long-estab­lished consti­tu­tional right, indic­ates that doing so is analog­ous to over­rul­ing Plessy v. Ferguson and legal­ized segreg­a­tion, and looks to histor­ical prac­tice in a way that makes many other funda­mental rights vulner­able, includ­ing marriage equal­ity and birth control.

Should a version of the leaked opin­ion become law, it will be possible because of the Court’s new 6–3 conser­vat­ive super­ma­jor­ity. Without the need to win over “swing” justices, the conser­vat­ive wing of the Court has little incent­ive to moder­ate its posi­tions or embrace an incre­mental approach to legal change, much less look for ways to engage with the other side or avoid reach­ing divis­ive ques­tions.

The leaked opin­ion makes clear that the future of repro­duct­ive rights is squarely in the Court’s sights. But Dobbs is not likely to be the only case where the Court upsets long-stand­ing doctrine or radic­ally alters govern­ment power, from regu­lat­ing guns to tack­ling global warm­ing. Among the many signi­fic­ant matters on the Court’s docket, we high­light three addi­tional cases to watch where the Court’s super­charged conser­vat­ive wing is likely to issue trans­form­at­ive rulings.

Two cases take aim at states’ poli­cy­mak­ing abil­ity. One is New York State Rifle and Pistol Asso­ci­ation v. Bruen, which could gut limit­a­tions on who can carry concealed hand­guns. The other is Carson v. Makin, a school fund­ing case that might finally allow conser­vat­ives to achieve a long-sought goal: mandated taxpayer fund­ing for reli­gious schools on the same terms as private schools. In a third case, West Virginia v. Envir­on­mental Protec­tion Agency, the Court will consider the scope of the EPA’s power to address climate change. The decision in that case could substan­tially limit not only the EPA’s regu­lat­ory author­ity but also create new hurdles for the entire admin­is­trat­ive state.

How the Court approaches these and other cases will be an early test of how much and how quickly its new super­ma­jor­ity intends to flex its muscles to reshape Amer­ican law and soci­ety.

Second Amendment: New York State Rifle and Pistol Association v. Bruen

By Eric Ruben

This case addresses whether gun owners have a consti­tu­tional right to carry their arms outside their homes and, if so, whether restrict­ive concealed carry licens­ing laws viol­ate the Second Amend­ment. It is the Court’s first big Second Amend­ment case since 2010, with substan­tial implic­a­tions for states’ abil­ity to regu­late guns.

Over­view

Bruen is a chal­lenge to a New York State law limit­ing who can carry a concealed hand­gun in public. For more than a century, New York­ers want­ing a license to carry a concealed hand­gun for self-defense have needed to show that they have what the law calls “proper cause” — essen­tially a greater need for self-protec­tion than others in the community. New York is one of eight heav­ily popu­lated states — home to roughly one-quarter of Amer­ic­ans — requir­ing that people seek­ing to carry a concealed hand­gun have a heightened need to do so.

A judge determ­ined that the plaintiffs in Bruen did not satisfy that stand­ard. Both received concealed carry licenses, but they were restric­ted in where they could carry their hand­guns. For example, one plaintiff was issued a license to carry a concealed hand­gun while trav­el­ing to and from work, and both were permit­ted to carry concealed hand­guns for hunt­ing, target prac­tice, and in certain areas not “frequen­ted by the general public.”

Along with the National Rifle Asso­ci­ation’s New York affil­i­ate, the plaintiffs sued, contend­ing that the limit­a­tions placed on their licenses viol­ate the Second Amend­ment. They argued that the Second Amend­ment protects their right to carry a hand­gun virtu­ally whenever and wherever the need for self-defense might arise.

Legal Issues

The Supreme Court first ruled there was an indi­vidual right to bear arms under the Second Amend­ment in 2008, strik­ing down a Wash­ing­ton, DC, ban on hand­guns in the home. Since then, the lower courts have decided over 1,400 Second Amend­ment cases about everything from felon-in-posses­sion prohib­i­tions to assault weapon bans.

These courts have borrowed from First Amend­ment doctrine, scru­tin­iz­ing severe burdens on core Second Amend­ment rights more closely than less oner­ous ones. In assess­ing gun restric­tions, courts consider, among other things, whether the laws suffi­ciently address modern public safety concerns. Under that approach, the consensus in the lower courts is that proper-cause laws like New York’s are consti­tu­tional.

One key legal ques­tion in Bruen is whether the Court will deploy this conven­tional approach or announce a new Second Amend­ment doctrine. Some gun rights advoc­ates are urging the justices to declare that only consti­tu­tional text, history, and tradi­tion should be consul­ted in decid­ing Second Amend­ment cases. That would be highly consequen­tial because it would affect the Second Amend­ment analysis of all chal­lenged weapons laws, not just proper-cause restric­tions.

In Bruen specific­ally, New York has argued that since the law is more than 100 years old, it would pass such a histor­ical test. But the plaintiffs inter­pret the histor­ical lessons differ­ently. The debate high­lights a short­com­ing of the text, history, and tradi­tion approach: in prac­tice, judges can cherry-pick histor­ical facts and tradi­tions to ration­al­ize a desired outcome.

What Happened at Oral Argu­ment

The discus­sion focused on history, and a major­ity of the Court expressed skep­ti­cism about the consti­tu­tion­al­ity of New York’s law. The ques­tions and comments of the justices reflec­ted predict­able ideo­lo­gical divi­sions, with Repub­lican-appoin­ted justices convey­ing a more expans­ive vision of protec­ted gun rights than their Demo­cratic-appoin­ted colleagues.

Possible Outcomes

The Supreme Court could uphold New York’s law, although that seems unlikely based on the oral argu­ment. More likely is that the Court strikes down New York’s proper-cause require­ment. This would keep in place licens­ing for concealed hand­guns but remove most of its teeth.

If that is the Court’s ruling, the next ques­tions are what policy altern­at­ives remain avail­able and what the decision means for future cases. At oral argu­ment, some, but not all, justices sugges­ted open­ness to permit­ting bans on guns in broadly defined sens­it­ive loca­tions like the New York City subway. In another exchange, in response to a ques­tion from Justice Clar­ence Thomas, the plaintiffs’ attor­ney said that his clients had no inten­tion of going into New York City with their hand­guns, which would provide a basis for the Court to limit its ruling to non-urban places. If the Court rules against New York, it will be import­ant to see which, if any, altern­at­ive policy routes to licens­ing the justices acknow­ledge as consti­tu­tional.

With regard to future Second Amend­ment cases, the key ques­tion will be whether a major­ity of the Court mandates a new frame­work — such as the text, history, and tradi­tion test — that would call into ques­tion other gun policies and invite a new round of litig­a­tion.

Authority of Federal Agencies: West Virginia v. Environmental Protection Agency

By Harry Isaiah Black

This case is about the scope of the EPA’s author­ity to regu­late pollu­tion from the energy sector, which accounts for a quarter of the U.S. emis­sions that are contrib­ut­ing to climate change. It has the poten­tial to severely curtail the abil­ity of many federal agen­cies — not just the EPA — to enact rules that address urgent soci­etal chal­lenges.

Over­view

West Virginia is a chal­lenge to an Obama-era EPA regu­la­tion known as the Clean Power Plan, which was designed to reduce carbon diox­ide emis­sions from power plants. Rely­ing upon powers under the Clean Air Act, the Obama plan required energy produ­cers to trans­ition away from burn­ing coal to lower CO2-emit­ting natural gas. In 2016, the Supreme Court halted the Obama plan prior to imple­ment­a­tion — the first time the Court had blocked a regu­la­tion before a federal appeals court had reviewed it.

Trump’s EPA then repealed the Obama plan in favor of the Afford­able Clean Energy rule, which required power plants to merely upgrade their equip­ment to burn coal more effi­ciently. On the eve of Joe Biden’s inaug­ur­a­tion, the DC Circuit Court of Appeals struck down the Trump plan and inval­id­ated the EPA’s revoc­a­tion of the Obama plan, conclud­ing that the agency had relied “on a mistaken read­ing of the Clean Air Act.”

Once Biden assumed the pres­id­ency, the EPA informed the appeals court that it did not intend to rein­state the Obama plan, in large part because market forces had already incentiv­ized power plants to satisfy the regu­la­tion’s emis­sions targets. The DC Circuit then stayed the imple­ment­a­tion of its order reject­ing the EPA’s revoc­a­tion of the Obama plan so that the agency could promul­gate a new rule. But before the Biden admin­is­tra­tion could try its hand at regu­lat­ing emis­sions from power plants, a collec­tion of coal compan­ies and Repub­lican state attor­neys general sought Supreme Court review of the DC Circuit’s ruling regard­ing the Trump EPA plan in order to prevent the EPA from reviv­ing a version of the Obama plan.

Legal Issues

Because the Biden admin­is­tra­tion has said it does not intend to imple­ment the Obama EPA plan, this case raises a seri­ous juris­dic­tional issue. Under long-estab­lished prin­ciples, federal courts cannot issue advis­ory opin­ions on hypo­thet­ical disputes but rather must limit their rulings to real contro­ver­sies. A threshold ques­tion, then, is whether the Court needs to wait for the EPA to issue new regu­la­tions or if it can go ahead and rule on a regu­la­tion that the agency is not seek­ing to imple­ment. But the fact that the Court agreed to take this case suggests the lack of an oper­able regu­la­tion is unlikely to be seen as a barrier. Further, it would not be the first time the Court over­looked similar proced­ural hurdles. For instance, the Court enjoined New York Covid-19 restric­tions no longer in force, effect­ively (and prema­turely) resolv­ing import­ant First Amend­ment issues.

Assum­ing the Court reaches the merits of the case, it must decide whether the text of the Clean Air Act only permits the EPA to regu­late how a given power plant oper­ates (like the Trump plan) or also allows the agency to use incent­ives and targets to force an industry-wide trans­ition from burn­ing coal to a lower CO2-emit­ting fuel (such as the Obama plan).

As part of their argu­ment, the coal compan­ies and states urged the Court to apply an inter­pret­at­ive prin­ciple called the “major ques­tions doctrine,” which requires Congress to make a clear state­ment if it wants an agency to make “decisions of vast economic and polit­ical signi­fic­ance.” Though rarely used in the past, this prin­ciple was applied by the Court twice in just the last year, once to block the Biden admin­is­tra­tion’s vaccine mandate for large employ­ers and once to lift a federal ban on evic­tions.

Its scope, however, has never been clearly defined. An expans­ive inter­pret­a­tion of the doctrine to fore­close any industry-wide regu­la­tion of green­house gases would dramat­ic­ally curb the EPA’s power to address climate change — and spell bad news for agen­cies’ regu­lat­ory author­ity in other realms such as public health and the economy.

Another argu­ment before the Court is that the relev­ant provi­sions of the Clean Air Act viol­ate the “non-deleg­a­tion” doctrine. Under that doctrine, Congress must provide an “intel­li­gible prin­ciple” to guide the agency’s regu­lat­ory decision-making when it passes a law like the Clean Air Act that author­izes the agency to make rules. The Court has not found a viol­a­tion of the non-deleg­a­tion doctrine since Frank­lin D. Roosevelt was pres­id­ent. In recent years, however, several of the justices — includ­ing Clar­ence Thomas and Neil Gorsuch — have expressed a desire to breathe life back into it.

What Happened at Oral Argu­ment

The justices spent substan­tial time on whether there was really a live case. The argu­ment also focused on the scope of the major ques­tions doctrine, with several justices grap­pling with whether it even applies to this case and, if it does, how to formu­late the govern­ing rule. Non-deleg­a­tion received less atten­tion, although Justice Amy Coney Barrett probed about the differ­ence between the non-deleg­a­tion and major ques­tions doctrines.

Possible Outcomes

Given the complex­ity of the case, there is a range of possible outcomes. If the Court chooses to dismiss West Virginia on juris­dic­tional grounds, it could simply dismiss the case, or it could also vacate the DC Circuit’s decision strik­ing down the Trump EPA rule, which would mean that the lower court order no longer has preced­en­tial effect.

If it reaches the merits of the case, the Court could uphold the Obama plan or limit the EPA’s abil­ity to regu­late power plant emis­sions only at the level of indi­vidual plant oper­a­tions. A decision reach­ing the latter result under the major ques­tions doctrine could spell trouble for all types of regu­la­tions, not just the EPA’s. The worst-case scen­ario for the EPA, though less likely, would be a ruling strik­ing down the heart of the agency’s abil­ity to regu­late green­house gas emis­sions from the energy sector as a viol­a­tion of the non-deleg­a­tion doctrine. A ruling under either the major ques­tions or non-deleg­a­tion doctrines would require Congress to pass new legis­la­tion clearly stat­ing that the EPA can adopt strin­gent regu­la­tions to combat climate change.

State Funding of Religious Schools: Carson v. Makin

By Harry Isaiah Black

This case addresses whether state and local govern­ments that subsid­ize private educa­tion are required to fund reli­gious instruc­tion. It has the poten­tial to redefine what counts as reli­gious discrim­in­a­tion, an area where the Supreme Court has been recently upend­ing well-estab­lished doctrine.

Over­view

Carson v. Makin involves a consti­tu­tional chal­lenge to Maine’s school “tuition­ing” system, where the state covers the costs for rural students who don’t have a public second­ary school in their district to attend an out-of-district school, includ­ing one out of state. This money may be applied toward private-school tuition, but under Maine law, the private insti­tu­tion must be “nonsec­tarian.” After Maine denied tuition assist­ance for several chil­dren to attend reli­gious high schools, the parents of those chil­dren sued the state, claim­ing that the state’s tuition assist­ance program viol­ates their First Amend­ment rights to freely express their faith.

Legal Issues 

For decades, the Supreme Court inter­preted the Consti­tu­tion’s Estab­lish­ment Clause, which limits a state’s abil­ity to promote reli­gion, as prohib­it­ing any state fund­ing going toward reli­gious activ­it­ies or insti­tu­tions. In 2002, the Court chipped away at that prohib­i­tion by hold­ing that states could choose — but were not required — to allow voucher programs to fund educa­tion at reli­gious schools. Perhaps apply­ing that prin­ciple, the Court declined on two occa­sions to hear claims against the very tuition assist­ance program chal­lenged in Carson, once in 1999 and again in 2006.

But in 2020, the Court flipped this rule on its head, conclud­ing in Espinoza v. Montana Depart­ment of Revenue that states were oblig­ated to fund reli­gious schools if they subsid­ized private educa­tion. More specific­ally, the Court ruled that Montana could not prohibit students who received private schol­ar­ships — dona­tions that were eligible for a tax deduc­tion — from using that money to attend a private school that iden­ti­fies with a reli­gious faith. It was a major change in doctrine, but the Montana case also limited what coun­ted as discrim­in­a­tion: whether a school’s mere affil­i­ation with a reli­gious insti­tu­tion could bar access to fund­ing. The Court left open whether states could still prohibit fund­ing to schools that actively teach reli­gion in the classroom.

Carson raises this issue front and center because Maine says it only with­holds money from schools that engage in reli­gious instruc­tion. And with the addi­tion of another conser­vat­ive justice to the Court since the Montana case — Amy Coney Barrett — the justices appear poised to require states to fund schools that provide reli­gious instruc­tion on the exact same terms as other private schools. It would be a major shift in just a few short years, dramat­ic­ally limit­ing states’ abil­ity to keep tax dollars away from schools that incul­cate faith. And it’s part of a broader effort by the Court to redefine the require­ments of reli­gious liberty — by the second anniversary of Barrett’s confirm­a­tion, the Court will have adju­dic­ated as many if not more such cases than the Court decided in all of Pres­id­ent Obama’s eight years in office.

What Happened at Oral Argu­ment

Members of the Court’s conser­vat­ive major­ity sugges­ted during the hear­ing that there is no consti­tu­tional differ­ence between fund­ing a reli­giously affil­i­ated school and fund­ing reli­gious instruc­tion. Draw­ing agree­ment from Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, Chief Justice John Roberts sugges­ted that by subsid­iz­ing tuition at certain reli­gious schools and not others, Maine imper­miss­ibly “draw[s] distinc­tions between reli­gions based on their doctrine,” since some reli­gions may require that faith be infused into instruc­tion while others do not.

Separ­ately, Justices Clar­ence Thomas and Barrett rejec­ted the state’s conten­tion that it does not discrim­in­ate against reli­gion because Maine’s tuition assist­ance is designed to provide chil­dren with a “rough equi­val­ent” of public educa­tion. Barrett noted that private and public schools are not neces­sar­ily similar, in that the former are some­times single sex while the latter are usually coedu­ca­tional.

Possible Outcomes

A few of the justices’ ques­tions left open the possib­il­ity that the Court could avoid the merits of the case and rule on proced­ural grounds. Thomas sugges­ted that the Court may lack juris­dic­tion over the case because it may not be able to redress the parents’ claims. Maine law bars entit­ies from receiv­ing state funds when they discrim­in­ate on the basis of sexual orient­a­tion, and the schools at issue have indic­ated they would refuse public money if that meant they could no longer exclude gay teach­ers and/or students.

Assum­ing the Court does not dismiss the case, it could punt on the issue of whether there is a consti­tu­tional differ­ence between a school main­tain­ing a reli­gious affil­i­ation and provid­ing reli­gious instruc­tion if it concludes that Maine’s tuition­ing system, like Montana’s schol­ar­ship tax bene­fit, actu­ally discrim­in­ates on the former basis.

But based on oral argu­ment, the most likely outcome is also the most dramatic: a broad ruling that states cannot prevent reli­gious schools from receiv­ing taxpayer funds.