Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

BU LAW professors break down four major case areas SCOTUS is expected to rule on, and the potential implications for all of us

SCOTUS’s high-profile decisions will have impacts on millions of Americans. Photo by STRF/STAR MAX/IPx via AP Images

US Supreme Court

Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

BU LAW professors break down four major case areas SCOTUS is expected to rule on, and the potential implications for all of us

February 16, 2022

Alene Bouranova

Abortion, affirmative action, gun control, and religious liberty are all on the US Supreme Court’s docket in 2022. Four issues that for years have been among the country’s most heated political debates could all see dramatic, life-altering, workplace-changing policy shifts under a high court that now has six conservative-leaning justices and three more liberal-sided ones.

The high-stake cases come at a tumultuous time for both the nation and the court itself. As the COVID-19 pandemic enters its third year, the Supreme Court has faced accusations of partisanship like never before. Recent decisions, including the court’s refusal to block the Texas “heartbeat bill,” have also signaled that the court may be willing to overturn long-standing precedent, turning rights that once seemed entrenched in society into uncertainties.

But how did we get to these cases—three of which have already been argued but not yet decided—in the first place, and what do they mean for Americans? Here, BU Today, with the help of Boston University School of Law professors, breaks down the major decisions SCOTUS is considering in 2022 and their potential implications.

Abortion—Dobbs v. Jackson Women’s Health Organization

Status: Arguments were heard in December 2021
Expect a decision by: TBD
Question(s) at hand: Does Mississippi’s law banning most abortions after 15 weeks violate the constitutional right to abortion? And, are all pre-viability bans on abortions unconstitutional?

Perhaps the highest-profile decision facing SCOTUS this year is the forthcoming Dobbs ruling, which deals with a 2018 Mississippi bill banning most abortions after 15 weeks.

Some history: The bill, known as HB 1510, was signed into law in March 2018. However, a federal district court immediately issued a temporary block after Jackson Women’s Health Organization, the last remaining abortion clinic in Mississippi, filed for a block. The same district court then struck the bill down entirely in November 2018, stating that it violated decades of precedent establishing that states cannot ban abortion before viability. Just over a year later, in December 2019, the US Court of Appeals for the Fifth Circuit upheld the district court’s decision. The state of Mississippi then filed what’s called a writ of certiorari with SCOTUS, asking it to review the Fifth Circuit’s decision. In May 2021, the Supreme Court agreed to hear Mississippi’s appeal (and to consider whether all pre-viability bans are unconstitutional), and here we are.

While Dobbs isn’t the first abortion case SCOTUS has faced in recent years, this will be the first decision explicitly regarding pre-viability bans since Roe v. Wade in 1973. (Note: fetal viability is generally considered to be around 23 weeks.) During the December arguments, more than half of the justices indicated that they’d be open to rolling back protections established in Roe, as well as 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, says Linda McClain, LAW’s Robert Kent Professor of Law.

In the decision, “Casey said several times that the central holding of Roe is that prior to viability, a woman must be free to terminate her pregnancy,” McClain explains. Now, “five justices of the court do seem ready to say, ‘These cases were wrong the day they were decided, they’re wrong now, and it’s time to overrule them.’

“So then the question is, does the court outright overrule Roe and Casey? Or, do they come up with some kind of decision that claims that they’re not directly overruling them, but that they’re refining them or stripping them of unnecessary disregard for fetal life? Dobbs opens the door to more regulation, so long as women still [technically] have a choice.”

If Roe is overturned, multiple states have laws that will go into effect that outright ban abortion, says Nicole Huberfeld, a LAW professor and the Edward R. Utley Professor of Health Law at the School of Public Health. States like Utah and Arkansas have laws called “trigger laws [a law that’s unenforceable, but may become enforceable if a key change in circumstances occurs],” already on the books that outlaw abortions under almost all circumstances. Other states, like South Carolina, Iowa, and Ohio, have six-week bans similar to Texas’ heartbeat bill—which SCOTUS declined to block in 2021 as lower courts decide challenges to the law—that were halted by court orders but would spring to life in the absence of Roe.

Abortion access “will very much become a patchwork” if Roe is overturned and trigger laws go into effect, Huberfeld says. Even if it isn’t overturned, and justices instead take the opportunity to roll back some protections, whether or not you can obtain an abortion will come down to “if you’re a person of means—not just money, but also knowledge, internet access, and the ability to seek care and understand your body,” she says.

Photo by John Lamparski/NurPhoto via AP Images

Affirmative Action—Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina

Status: Scheduled to be heard in October 2022
Expect a decision by: Summer 2023, most likely
Question(s) at hand: As they stand, are Harvard University’s and the University of North Carolina at Chapel Hill’s race-conscious admissions policies unlawful? And, are all race-conscious college admissions policies unlawful?

In January 2022, SCOTUS announced it would decide whether or not Harvard’s and UNC’s admissions policies, which consider an applicant’s race alongside factors like SAT scores and extracurriculars, are legal.

Sound familiar? It should. Some history: In 2016, SCOTUS heard Fisher v. University of Texas, which rejected a challenge to a race-conscious admissions program at UT Austin. The decision effectively upheld that admissions departments can use race as a factor in considering applicants in order to create a diverse student body. However, the decision was split 4-3 with strong dissents from justices Clarence Thomas and Samuel Alito (and joined by Chief Justice John Roberts), paving the way to today’s two challenges, brought by different coalitions of the same admissions nonprofit alleging that Harvard and UNC unfairly discriminate against Asian Americans [Harvard] and both white and Asian Americans [UNC].

“Affirmative action is a space that I think multiple justices on the Supreme Court, particularly Justice Thomas, would be eager to relitigate,” says Jonathan Feingold, a LAW associate professor of law.

But what exactly does affirmative action do? In legal terms, it constitutes “a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” The use of affirmative action in college admissions stems to the 1960s, when some schools began implementing policies designed to admit more students of color, who had been historically excluded from higher education. However, as a race-based practice, affirmative action in higher ed has long faced opposition and has been banned in nine states throughout its history.

That opposition is why the practice is back on the docket again, Feingold says. “I think the conservative justices are committed to a particular sort of mode of racial jurisprudence that sees increasingly little distinction between race-conscious efforts to promote a more racially just, inclusive society and race consciousness that anchors Jim Crow laws.” Does that mean we should expect the court to strike affirmative action down this time? Yes, Feingold says. “The conservative majority on the court seems comfortable taking advantage of the power that comes with six votes to disregard existing law.”

The question then becomes, what will college admissions look like without affirmative action? It’s worth noting that these cases fall at a time when many higher ed institutions are already rethinking their admissions processes in response to the COVID-19 pandemic and nationwide discussions about class and race. A handful of schools, including BU, Harvard, and UNC, have become “test-optional” for at least the time being, meaning most prospective students no longer have to take the ACT or SATs in order to apply if they don’t want to. So would axing affirmative action make a dramatic difference in who does or does not get an offer letter?

Absolutely, Feingold says. Standard college admissions tend to privilege students “who enjoy social advantage, whether that’s racial-, wealth-, or class-related, especially in elite schools,” he says. Even test-optional policies, implemented to evaluate students more holistically, can still reinforce bias toward students of higher means. With affirmative action off the table, he says, colleges could incidentally end up favoring wealthy, mostly white students who were already likely to be accepted in the first place.

That’s especially true in the Harvard case, Feingold says: “If you look at the evidence of anti-Asian bias that the plaintiffs in the Harvard litigation are presenting to the court, the beneficiaries of that bias tend to be white.”

Photo by Sergi Reboredo /VWPics via AP Images

Gun Control—New York State Rifle & Pistol Association, Inc., v. Bruen

Status: Arguments were heard in November 2021
Expect a decision by: TBD
Question(s) at hand: New York requires gun owners to demonstrate a “special need for self-protection” in order to obtain a concealed-carry license. Does the state’s denial of a license to two gun owners constitute a violation of the Second Amendment?

New York State Rifle & Pistol Association Inc., v. Bruen is the first gun-control case to hit the Supreme Court since 2008’s District of Columbia v. Heller.

Some history: There are two main types of concealed-carry (CCW) permit laws in the United States: “shall issue” and “may issue.” (Some states do not require CCW permits at all.) In “may issue” states, the issuing body has wide authority to reject gun owners’ applications for CCW permits based on a variety of factors. In “shall issue” states, the issuing body has much less authority to reject applications.

New York, a “may issue” state, has a “proper cause” law on the books that requires would-be CCW permit–holders to demonstrate an above-and-beyond need for self-protection outside of the home. (Examples: an employee who regularly transports cash to the bank or someone who’s been receiving violent threats from an ex-partner.)

Two members of the New York State Rifle & Pistol Association, Robert Nash and Brandon Koch, were denied CCW permits after the state determined they had failed to demonstrate proper cause in their applications. Koch and Nash’s subsequent lawsuit was rejected by a federal court on the grounds that New York’s “proper cause” law did not violate the Second Amendment. The US Court of Appeals for the Second Circuit upheld the federal court’s decision.

SCOTUS heard oral arguments for the case in November 2021. Arguments like Koch and Nash’s—i.e., that a “may issue” law such as New York’s violates the Second Amendment—have been “raised many times in the lower courts in the decades since Heller was decided, and have been rejected pretty much every time,” says Cody Jacobs, a LAW lecturer. What’s more, up until now, SCOTUS has “typically declined to hear cases challenging these types of laws.”

So, what’s different this time? A conservative-leaning court that’s more pro–Second Amendment than previous courts, Jacobs says. During the arguments, the conservative judges seemed “extremely skeptical” of New York’s law, signaling that a strike-down might be coming around the bend. That, he continues, could mean the end of “may issue” laws entirely: “I’m not sure how the court could meaningfully write a decision that would distinguish just the New York law from all these other ‘may issue’ regimes.”

Photo by alaskla/iStock

Religious Liberty—Carson v. Makin

Status: Arguments were heard in December 2021
Expect a decision by: TBD
Question(s) at hand: Does Maine violate the equal protection clause of the US Constitution by prohibiting Maine students from using state-provided federal aid to attend secondary schools that provide religious instruction?

At hand in Carson v. Makin is not only the erosion of the separation between church and state, but the push for privatization of schools by corporate and religious actors, says LAW’s Jonathan Feingold.

Some history: In its state constitution, Maine has a duty to provide every student with a free public education. The state relies on what it calls regional school administrative units (SAUs) to ensure that every student within a unit’s borders has access to a school. However, because large parts of Maine are rural, not every SAU has its own secondary school. In that case, a SAU has to either partner with a different SAU’s secondary school or pay the tuition for a secondary school a student is accepted to, as long as that school is a public school or an “approved” private school (i.e., that it’s nonsectarian and meets Maine’s compulsory-attendance requirements).

Three families—the Carsons, Gillises, and Nelsons—who live in a SAU without a secondary school that instead provides tuition assistance to students’ school of choice, sent their children to a private school. But because the private school they chose was religiously affiliated, the state would not give them tuition assistance. The families filed an unsuccessful lawsuit in a federal court, alleging that Maine’s nonsectarian clause is unconstitutional. The US Court of Appeals for the First Circuit upheld the federal court’s decision. In December 2021, SCOTUS heard oral arguments for the case.

Maine’s sectarian clause has long been an effort to maintain the separation between church and state, Feingold says. “Maine has been coming from a concern that if religious schools were included in its tuition reimbursement program, that would violate the establishment clause of the Constitution,” he explains. However, one of the arguments some justices appeared to pick up on is the idea that “by earmarking this public money for nonsectarian schools, Maine is discriminating against religious schools,” Feingold says.

So what’s most likely to happen? That SCOTUS will find Maine’s nonsectarian clause unconstitutional, building on 2020’s Espinoza v. Montana Department of Revenue decision. If so, Feingold explains, Maine will likely have to start providing tuition reimbursement for religiously affiliated schools, too. In the worst case scenario, that could open the door for religious schools to discriminate against LGBTQIA+ students and staff or other groups that some religions have historically been hostile toward. In the best case scenario, those same students could actually end up better protected thanks to federal antidiscrimination laws attached to public funding.

Additionally, should SCOTUS rule that the nonsectarian clause is unconstitutional, that could be viewed as an attempt to “undermine public education more broadly,” Feingold says, connecting it to components of the charter school movement and historical efforts to redirect public tax dollars to nonpublic schools.

“This legacy of divestment of public money from public schools to religious schools goes back at least to the aftermath of Brown v. Board of Education, when states created voucher systems so parents could be reimbursed for sending their kids to [segregated private] schools,” he says. “Divestment is a piece of broader efforts on behalf of both corporate and religious-minded actors to privatize education.”

Photo by monkeybusinessimages/iStock

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There are 9 comments on Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

Sonny

February 17, 2022 at 7:42 am

The Supreme Court has been turned into a political weapon for conservatives. No matter how much they want to deny this, and deify their institution as something above politics, there’s no denying now that it’s an un-democratic institution that does not represent the will of the electorate. Just like gerrymandering, it’s a way for a political minority to have outsized power and it needs to be heavily reformed. Good luck figuring out how though.


1. Concerned
  
  February 17, 2022 at 9:13 am
  
  We live in a republic, not a democracy. This is part of the checks and balances so the 51% does not rule over the 49%. Like it or not about half the people in the country agree with the courts decision. Instead of complaining over it, maybe try to understand their views. Conservatives are not a political minority. At BU it is, but go out beyond your comfort zone and talk to people who don’t think the same as you and you will see the difference.
  
  
  1. Caroline
    
    February 17, 2022 at 11:13 am
    
    Really, the Supreme Court is not supposed to represent “the will of the electorate.” That is the job of your executive and legislative branch. The Supreme Court is supposed to interpret laws, most importantly the Constitution.
    
    My problem with the conservative wing of the Supreme Court is not that conservatives make up less than 50% of the country but have appointed 66% of Justices. Rather, the problem is that the conservatives of the court invariably interpret laws in a biased manner to suit their interests instead of impartially “calling balls and strikes.” See the failure of textualism to reach a coherent argument in Castle Rock v. Gonzales, the insane decision to award corporation spending the right of “speech” in Citizens United, or their obvious disdain and disregard for the Ninth Amendment.
    
    
  2. sonny
    
    February 18, 2022 at 9:35 am
    
    “We live in a republic, not a democracy ” is always wrong and shows that anyone who uses it doesn’t understand what a republic is. Representatives in a republic are elected through power vested in the people, AKA, democracy. Conservatives are actively trying to subvert democratic elections of these representatives by invalidating election results they don’t like, disenfranchising ethnic minorities, and violently overthrowing the capital on January 6th. So really, they’re trying to create governments ruled by a thuggish minority.
    
    Conservatives have bent over backwards to try to silence and invalidate the votes of anyone who doesn’t vote republican, so I’ve heard quite enough from them by now. I’ve heard quite enough from them, so maybe spare me your condescending advice and consider how the right wing in this country is trying to turn the US into an authoritarian state where your vote matters less and less every year.
    
    
  3. BU Student
    
    February 20, 2022 at 11:28 am
    
    I don’t know about the other issues here but I know 70% of people in America agree with a woman’s right to choose; the Supreme Court overturning it would not be a case of checks and balances but an outright denial of the wishes of a large majority of constituents. All that aside, my right to choose does not belong in the hands of six old men and a woman who is in a literal Christian cult (look up People of Praise, it’s literally like something out of the Handmaid’s Tale).
    
    
    1. Aeisha Brown
      
      February 23, 2022 at 12:42 pm
      
      A fetus is not a woman’s body, it is a unique DNA sequence. Court will no doubt roll back Roe vs Wade, if it follows the science. Abortion is murder, and I expect access to abortion to be banned or at least limited to extreme situations.
      
      
    2. Bianca
      
      March 4, 2022 at 6:49 pm
      
      I’m so confused by your statement because there are 9 (not 7) Supreme Court justices (including the Chief) and 3 (not 1) of those are women.
      
      
    3. MattC
      
      May 7, 2022 at 4:01 pm
      
      @BU Student – SCOTUS Justices are unelected and don’t have ‘constituents’. They decide cases based on the constitution. If there isn’t a specific power granted by the constitution to resolve an issue, that case gets referred back to the States, or the people.
      
      This is exactly what the Alito draft did to R v W. It’s been a long time coming.
      
      
Sam White

April 15, 2022 at 9:10 am

A unique DNA sequence that is inside the body of a unique DNA sequence that contains a fully developed brain. That woman will make that decision for her life. Neither you or the federal government, the pope, or any other power on this earth will make that decision.
Concentrate on your own life and what is within it and stay out of other women’s lives.

Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

BU LAW professors break down four major case areas SCOTUS is expected to rule on, and the potential implications for all of us

Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

BU LAW professors break down four major case areas SCOTUS is expected to rule on, and the potential implications for all of us

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Guns, God, Abortion, Affirmative Action: US Supreme Court’s Historic 2022

BU LAW professors break down four major case areas SCOTUS is expected to rule on, and the potential implications for all of us

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