Supreme Court on Guns, God, Abortion, and Affirmative Action

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Supreme Court

Supreme Court on Guns, God, Abortion, and Affirmative Action

How the US Supreme Court’s historic decisions in 2022 will impact Americans for generations to come

November 3, 2022

Alene Bouranova

Abortion, affirmative action, gun control, and religious liberty—all cases that landed on the US Supreme Court docket in 2022. Three were decided—to both celebration and outrage—representing some of the country’s most high-stakes, divisive political issues. Another decision is expected in 2023. Not only will the court’s decisions have repercussions for generations to come, but they also have the potential to dramatically reshape the country’s perception on a global scale.

The timing wasn’t necessarily a coincidence, or a surprise. Previous decisions, such as the court’s declining to block Texas’ “heartbeat bill” and the springtime leak of a draft decision on Roe v. Wade, have signaled a willingness by the court’s six conservative-leaning justices to overturn precedents. That means cases that historically would have been dismissed or returned to lower courts are up for reinterpretation. As a result, the court is facing accusations of partisanship—and not just from the public. In Dobbs, overruling Roe v. Wade, liberal-leaning justices Stephen Breyer (Hon.’95), Sonia Sotomayor, and Elena Kagan coauthored a dissent. “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” they write.

James E. Fleming, the Honorable Paul J. Liacos Professor at the School of Law and author of Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022), is a scholar of constitutional law and the Supreme Court. “The new conservative majority, including three nominees of President Donald Trump,” he says, “aggressively used its power to shatter long-standing precedents protecting the right of pregnant persons to personal autonomy and bodily integrity; expand the rights of gun owners to carry firearms in public despite the epidemic of gun violence in the US; further erode the separation of church and state by increasing the role of religion in public life; and ramp up the never-ending assault on the administrative state through sharply limiting the power of the federal government to combat climate change and to curb the spread of the coronavirus pandemic. It was the most conservative term in a century. What is worse, there is every reason to believe that the court is just getting started.”

Fleming adds, “The court has brought upon itself an even deeper, more pervasive crisis of legitimacy stemming from its embrace of originalism. Instead of being faithful to our nation’s ideals and aspirations embodied in the Constitution and developed over time by deciding cases on the basis of reasoned judgment and experience, their originalism would enshrine a hidebound Constitution that does not deserve our fidelity.”

What do these cases mean for Americans? LAW faculty break down the major decisions of 2022 and their potential implications.

Abortion—Dobbs v. Jackson Women’s Health Organization

ARGUMENTS HEARD: December 2021
DECISION RETURNED: June 2022
QUESTIONS 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?
ANSWERS: No, no, and Roe v. Wade is unconstitutional.

Perhaps the highest profile decision facing the court this year was the Dobbs ruling, which dealt with a 2018 Mississippi bill banning most abortions after 15 weeks. The court determined that abortion is not a constitutionally protected right and returned the decision on whether to allow abortion to the states.

While Dobbs isn’t the first abortion case the Supreme Court has faced in recent years, it was the first decision since 1973 explicitly regarding pre-viability bans. Another oft-cited abortion case, 1992’s Planned Parenthood v. Casey, reaffirmed Roe’s holding that pre-viability abortion was constitutionally protected. (Fetal viability is generally considered to be around 23 weeks.) Now, with both Roe and Casey nullified by the Dobbs decision, states are free to make their own laws regarding abortion.

So far, fewer than 20 states (and the District of Columbia) have laws on the books protecting abortion access. Since Dobbs, some states—such as Georgia and Ohio—have limited the window during which a resident can obtain an abortion. (Ohio made headlines over the summer when a 10-year-old rape victim was denied an abortion after missing the state’s six-week window. She traveled to Indiana to undergo the procedure.) Others, including Alabama and Arkansas, have banned the procedure outright with few or no exceptions. Many states are in legal battles over legislation.

With abortion laws varying from state to state, “what we get is a real patchwork,” says Nicole Huberfeld, a LAW professor and the School of Public Health Edward R. Utley Professor of Health Law, Bioethics, and Human Rights. “The state you live in will dictate the kind of care you have access to.” Ultimately, she says, the ability to 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. People who are already vulnerable, like low-income women, Black women, and LGBTQ+ populations, are going to suffer because they’re already the ones who have a harder time accessing the care that they need.” We should expect to see higher rates of health complications and maternal mortality, Huberfeld says.

Abortion bans are also introducing complications elsewhere. Vague wording in state laws has led to instances of pharmacists declining to fill prescriptions for drugs such as misoprostol—which is used in medical abortions, but can also be taken for stomach ulcers and other conditions—over fears that a patient will use the pills to undergo an abortion. Fertility clinics have reported an influx of calls from patients inquiring if in vitro fertilization will now be illegal under new state laws.

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

STATUS: Heard in October 2022
EXPECT A DECISION BY: Summer 2023, most likely
QUESTIONS 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, the Supreme Court announced it would decide whether Harvard’s and UNC’s admissions policies, which consider an applicant’s race alongside factors like SAT scores and extracurriculars in order to create a diverse student body, are legal.

Sound familiar? It should. Some history: In 2016, the court heard Fisher v. University of Texas, which rejected a challenge to a race-conscious admissions program at UT Austin. The decision upheld that admissions departments can use race as a factor in considering applicants to create diversity on campus. 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 for the current two challenges.

How does affirmative action work? 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 dates back to the 1960s, when some schools began implementing policies designed to admit more students of color, who had been historically excluded from higher education. 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, says Jonathan Feingold, a LAW associate professor. “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,” he says.

These cases come 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, at least for now, meaning most prospective students are no longer required to take the ACT or SATs in order to apply.

Feingold believes that axing affirmative action will make a dramatic difference in who does or does not get an offer letter. 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.”

Religious Liberty—Carson v. Makin

ARGUMENTS HEARD: December 2021
DECISION RETURNED: June 2022
QUESTION 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?
ANSWER: Yes, it does.

At hand in Carson v. Makin was not only the erosion of the separation between church and state, but the push for privatization of schools by corporate and religious actors, says Jonathan Feingold, a LAW associate professor. By ruling that Maine’s nonsectarian clause is unconstitutional, the state now has to provide tuition reimbursement for religious schools.

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. But because large parts of Maine are rural, not every SAU has its own secondary school. In that case, the 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 (one that is nonsectarian and meets Maine’s compulsory-attendance requirements).

Three families—the Carsons, Gillises, and Nelsons—who live in a region without a secondary school that instead provides tuition assistance to students’ school of choice, sent their children to a private school. Because the school was religiously affiliated, the state would not give them tuition assistance. The families then filed a lawsuit.

Maine’s nonsectarian clause has long been an effort to maintain the separation between church and state, Feingold says. The policy also helped keep the lid on discrimination espoused by certain religions against members of the LGBTQ+ community. As the dissent filed by Justice Sonia Sotomayor highlights, the particular schools involved in the case have policies on hand that “currently discriminate against many of Maine’s residents,” Feingold says. “Multiple justices noted that the Christian schools involved in this litigation have policies ‘denying enrollment to students based on gender identity, sexual orientation, and religion,’ which creates a direct conflict with federal and state antidiscrimination laws that prohibit such conduct.” Feingold points out that those students could end up better protected, thanks to federal antidiscrimination laws attached to public funding.

Carson v. Makin wasn’t the only religion and schools case the Supreme Court decided in 2022. A few days after the Carson decision came down, the court ruled on Kennedy v. Bremerton School District, determining that former high school football coach Joseph Kennedy had the right to pray on the field. In previous decades, the court has ruled that religious exercise in schools is unconstitutional.

Taken together, the Kennedy and the Carson decisions demonstrate how the court’s conservative justices are willing to “dismantle the wall of separation between church and state that the Framers fought to build,” Feingold says. We should expect to see similar decisions chipping away at this separation in the future, he adds. And with Carson in particular, the court’s ruling could be interpreted as an attempt to “undermine public education more broadly,” he says, with its echoes of parts of the charter school movement and historical efforts to redirect public tax dollars to nonpublic schools.

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

ARGUMENTS HEARD: November 2021
DECISION RETURNED: June 2022
QUESTION 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?
ANSWER: Yes, it does.

New York State Rifle & Pistol Association, Inc. v. Bruen was the first gun-control case before the Supreme Court since 2008’s District of Columbia v. Heller. In this latest case, by striking down New York’s concealed-carry law as unconstitutional, the court expanded citizens’ right to carry weapons outside of the home.

Some background: There are two main types of concealed carry weapons (CCW) permit laws in the US: “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 long had 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 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.

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

The strikedown of New York’s “may issue” standard means others across the country will probably have to go. Fellow “may issue” states like Massachusetts, California, and New Jersey are likely to face challenges to their own laws, Jacobs says. Licensing authorities—which in Massachusetts’ case, are local police chiefs—will still have the ability to deny a permit if they deem an applicant unsuitable. But that will be harder to prove now. “This shifts the burden—where it used to be on a person to say, ‘I have a particular need to carry a gun,’ now it’s on the government to say, ‘You have a particular reason you shouldn’t carry a gun,’” Jacobs explains. He expects it will be much easier for citizens to obtain licenses to carry a gun in public. Individual businesses will still have the right to declare themselves “gun-free zones,” however, even if concealed carry is expanded in a state.

It’s difficult to ignore that the court’s strikedown came amid a streak of mass shootings in the US. Jacobs points out that the weapons permitted under concealed-carry laws (such as handguns) aren’t typically the kind used to commit mass shootings. But the court’s willingness to expand Second Amendment rights could spell trouble for current gun-control measures at both federal and state levels, he says.

“The Bruen decision instructed [lower] courts to look at Second Amendment claims differently than they were looking before,” Jacobs says.

That means should a challenge arise to, say, California’s assault-weapons ban, that could lead to it being declared unconstitutional based on the new, looser parameters Bruen established, he says. The same could go for bans on large-capacity ammunition magazines. According to Jacobs, we shouldn’t be surprised if that happens. “While there is historic precedent for some of [these regulations], we’ve seen that the court’s conservative majority is willing to play fast and loose with history in order to get the result they want,” he argues. “It’s pretty clear where they’re going with this decision.”

Dobbs v. Jackson Women’s Health Organization: “The Roar of a Wave That Could Drown the Whole World” by James E. Fleming
A LAW professor weighs in on the US Supreme Court’s 2022 decisions

James E. Fleming, the Honorable Paul J. Liacos Professor of Law at the BU School of Law, is a scholar of constitutional law and the Supreme Court. He is the author of Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

“I heard the roar of a wave that could drown the whole world.” These lines, from Bob Dylan’s prophetic “A Hard Rain’s A-Gonna Fall,” express what we heard from the Supreme Court last term: the roar of a wave that could drown the whole world of constitutional law built up over the past half century. The new conservative majority, including three nominees of President Donald Trump, aggressively used its power to shatter long-standing precedents protecting the right of pregnant persons to personal autonomy and bodily integrity; expand the rights of gun owners to carry firearms in public despite the epidemic of gun violence in the US; further erode the separation of church and state by increasing the role of religion in public life; and ramp up the never-ending assault on the administrative state through sharply limiting the power of the federal government to combat climate change and to curb the spread of the coronavirus pandemic. It was the most conservative term in a century. What is worse, there is every reason to believe that the court is just getting started.

Dobbs v. Jackson Women’s Health Organization dominated the term and exemplifies several recurring characteristics of the disruptive conservative majority: its elevation of the significance of the unjust historical practices as of 1791 or 1868 over the significant achievements of our constitutional practice since the New Deal in extending ordered liberty and the status of equal citizenship to all; its rejection of incremental steps in favor of hard-right maximalist turns; its decreeing that precedents have established frameworks which the precedents in fact have repudiated; its acting like counterrevolutionaries overthrowing an “egregious” regime and restoring an old order rather than like judges deciding one case at a time, building out doctrines with coherence and integrity.

In Dobbs, the court held that the right to abortion is not “deeply rooted in this nation’s history and tradition” or essential to “ordered liberty”—the balance our nation has struck between personal freedom and the demands of organized society. More ominously, the court ruled that Washington v. Glucksberg provides the proper test for deciding what basic liberties the Due Process Clause protects: only those specific liberties protected in the concrete historical practices as of 1868, when the Fourteenth Amendment was adopted. Glucksberg rejected the approach of Planned Parenthood v. Casey, which had interpreted our traditions instead as abstract aspirational principles whose meaning is built out over time. For example, “all persons are created equal” is part of our tradition, despite concrete historical practices of inequality, including slavery, Jim Crow, and gender discrimination. Therefore, being faithful to the Fourteenth Amendment requires breaking from historical practices because of commitments to aspirational principles of liberty and equality.

In dissent in Obergefell v. Hodges, which extended the right to marry to same-sex couples, Chief Justice John Roberts protested that the case “effectively overrules” Glucksberg, which he called the “leading modern case” interpreting the Due Process Clause. But, as I demonstrate in my new book, Constructing Basic Liberties: A Defense of Substantive Due Process, Glucksberg is the leading modern case only for justices who stand against protecting rights of personal autonomy and bodily integrity. Indeed, Obergefell is inconsistent with Glucksberg. So are Lawrence v. Texas, which extended the right to sexual intimacy to same-sex persons, and Griswold v. Connecticut, which recognized the right to use contraceptives. In fact, every decision in the past century that has protected a basic personal liberty under the Due Process Clause is inconsistent with Glucksberg. None would have come out as it did had the court applied Glucksberg’s framework. Before Dobbs, the Glucksberg test was the conservative justices’ method of damage control: to argue against recognizing rights and limit prior cases to their specific holdings, given that they did not have the votes to overrule them. Now conservative justices have the votes to do so, even though Justice Samuel Alito’s majority opinion in Dobbs denies that it casts doubt on any cases besides Roe and Casey.

US Senator Lindsey Graham praised Alito’s opinion in Dobbs for “setting the right tone” by assuring that it would not endanger other rights. But Justice Clarence Thomas’ concurring opinion said the quiet part out loud: if the Court applies Justice Alito’s approach, it will conclude that all of the due process decisions protecting personal autonomy and bodily integrity—including Griswold, Lawrence, and Obergefell—were “demonstrably erroneous” and should be overruled.

In truth, the Glucksberg test would find that contraception, same-sex intimacy, and same-sex marriage—not to mention interracial marriage, which Thomas rather conveniently overlooked—are not protected liberties for the same reason that abortion is not: none of those rights, any more than abortion, was protected specifically in the concrete historical practices as of 1868. Moreover, Alito in 2020 joined Thomas’ statement in Kentucky clerk Kim Davis’ case calling for overruling Obergefell. If this court does not overrule precedents like Obergefell, Lawrence, and Griswold, it will be because of political judgments (like Senator Graham’s) about Republican Party politics, not because of their legal framework.

The Dobbs dissenters rightly called out this “hypocrisy,” warning that Roe and Casey were “part of the same constitutional fabric” as these other precedents. All prior cases protecting personal autonomy and bodily integrity have rejected the hidebound historical practices framework Alito adopts in Dobbs in favor of the abstract aspirational principles framework.

Many have worried that the court’s haste to overrule precedents cherished by liberals has provoked a crisis of legitimacy. Increasingly, people perceive the court’s decisions as mostly political and see the court as little more than an arm of the Republican Party rather than a principled legal institution. There is much to this perspective: it is imperative that liberals and progressives recognize that, for the next generation or longer, they will have to pursue constitutional justice through legislatures, executives, and state courts. Furthermore, the court has brought upon itself an even deeper, more pervasive crisis of legitimacy stemming from its embrace of originalism. Instead of being faithful to our nation’s ideals and aspirations embodied in the Constitution, and developed over time by deciding cases on the basis of reasoned judgment and experience, their originalism would enshrine a hidebound Constitution that does not deserve our fidelity. It would cast out the most significant achievements of our constitutional law: decisions that have criticized concrete historical practices as of 1868 in seeking to be faithful to aspirational principles of liberty and equality.

Many conservatives, to the contrary, have celebrated Dobbs as a restoration of constitutional legitimacy. It is a restoration only in the sense that a counterrevolution restores an old, oppressive order—the concrete historical practices as of 1868—over and against a constitutional amendment and a modern practice of aspiring to extend ordered liberty and the status of equal citizenship to all.

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Supreme Court on Guns, God, Abortion, and Affirmative Action

Supreme Court on Guns, God, Abortion, and Affirmative Action

How the US Supreme Court’s historic decisions in 2022 will impact Americans for generations to come

Dobbs v. Jackson Women’s Health Organization: “The Roar of a Wave That Could Drown the Whole World” by James E. Fleming
A LAW professor weighs in on the US Supreme Court’s 2022 decisions

Explore Related Topics:

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Supreme Court on Guns, God, Abortion, and Affirmative Action

How the US Supreme Court’s historic decisions in 2022 will impact Americans for generations to come

Dobbs v. Jackson Women’s Health Organization: “The Roar of a Wave That Could Drown the Whole World” by James E. FlemingA LAW professor weighs in on the US Supreme Court’s 2022 decisions

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Latest from Bostonia

Dobbs v. Jackson Women’s Health Organization: “The Roar of a Wave That Could Drown the Whole World” by James E. Fleming
A LAW professor weighs in on the US Supreme Court’s 2022 decisions