- Anthony Zurcher
- BBC reporter for North America
Ever since Donald Trump appointed three Conservative judges to the United States Supreme Court during his four-year presidential term, for many it seemed a matter of time before the country’s highest legal body began to act, deciding on some of the most controversial current legal and political issues.
With the beginning, this Monday (10/04), of a new season of work at the Court, this moment may have arrived.
This next period of work by the judiciary will decide some cases — on issues such as abortion, firearms control, national security and religion — that may not only set precedents for US courts, but fundamentally change the American social fabric.
Various political activists across the political spectrum are on the lookout — leading some, particularly on the left, to make grave warnings about the enormous power of the judiciary and to suggest ways in which that power can be contained, either by changing its composition or by limiting your authority.
This criticism has led the Court’s conservatives to react harshly against accusations that they have a political agenda.
Judge Samuel Alito said critics are making “unprecedented efforts to intimidate the Court.”
Amy Coney Barrett, who replaced Liberal Judge Ruth Bader Ginsburg after her death in October 2020, has reacted against those who say the Supreme Court members are “a bunch of supporters”.
Clarence Thomas, the court’s most veteran judge, blamed the media for making judges appear to be like politicians who make decisions based on their “personal preferences.”
If conservative judges all vote together on any of these big issues — dismantling abortion protections, for example — those promises could end up being ignored.
This will be one of the most closely watched cases in recent Supreme Court history, as anti-abortion activists believe the court, now dominated by conservatives, can finally relinquish nearly five decades of precedence since the Roe v Wade case and allow it to States prevent further restrictions on abortions during the first six months of pregnancy.
The case involves a Mississippi law that prohibits abortions after the 15th week of pregnancy — a law that was, from the beginning, designed to give the court a chance to change the course of this politically difficult issue.
For most of US history, the Supreme Court has made little effort to define the meaning of the term “right to bear arms” contained in the Second Amendment to the US Constitution.
That changed with the historic 2008 District of Columbia v Heller case, in which a narrow majority of judges upheld the constitutional right to own a firearm.
The most recent target of gun advocates are rules imposed by municipalities and states that, according to them, disrespect this right.
In the crosshairs during this new season of the Court is New York City’s restriction on access to concealed licenses to carry handguns — a case that could give judges an opportunity to decide which to carry a pistol, even in large cities. , it should be a lot easier.
The themes of religious freedom and capital punishment clash in a case in the State of Texas, where a prisoner sentenced to death filed a lawsuit to allow his pastor to pray at his side, maintaining physical contact, during his execution.
Another, more lateral case that also deals with capital punishment and will certainly generate newspaper headlines involves the author of the explosion in the Boston Marathon in 2013, Dzhokhar Tsarnaev.
A court ruled that his death sentence was invalid because jurors had been influenced by press coverage that preceded the trial and because they were informed of other murders committed by Tsarnaev’s brother, who participated in the Boston bombing and was killed by police during a chase. President Joe Biden’s government wants that death sentence to be re-imposed.
Sometimes multiple cases in a season of Supreme Court work touch on various aspects of the same theme. This year, two lawsuits involve the type of information the government can withhold in the name of “state secrets” and national security.
The first involves Guantanamo Bay prisoner Abu Zubaydah, who seeks information about so-called “shady sites” for interrogation managed by the US and people hired by the Central Intelligence Agency (CIA) he is prosecuting for allegedly torturing him.
The second is linked to a lawsuit filed by a group of Muslim men in California who allege that the FBI committed religious discrimination when it monitored members of their community for possible terrorist connections.
If there is one area where the court has demonstrated its conservative bent in recent years, it is in matters involving religious freedom and alleged disrespect for that freedom.
In this new season of work, the court has listed a case questioning the state’s ability to exclude parochial schools from a program that gives students money to use in private education. It seems very unlikely, given the recent history of this court, that such a policy will survive.
the ‘parallel court’
While this season of the Court may have more contentious decisions than usual, there are some disputes recently fought in smaller courts that judges could have chosen — but preferred not to consider.
The court chose not to rule on a case that questions the constitutionality of mandatory military conscription for men only — American males still need to register with the military, despite mandatory drafting having been abandoned in the early 1970s.
The judges also decided not to embrace a case that tries to give the District of Columbia, where the capital, Washington is, a seat in Congress, and other lawsuits that directly challenge the death penalty.
Sometimes, however, a decision not to debate and deliberate a case — or to issue an “emergency” order in some legal dispute — can have almost the same big impact on the US legal landscape as a case integrated into the calendar of Supreme Court.
The Court has, more and more, used what has come to be known as the “parallel court”—short opinions, often unsigned, delivered without much fuss and often outside normal working hours.
Three recent examples of this trend involved Supreme Court actions in an extremely restrictive Texas abortion law, a Trump-era policy requiring asylum seekers to stay in Mexico, and an attempt by the Biden government to maintain a temporary moratorium on evictions of residents from their homes. .
While traditional court decisions take months to make, from legal advice to ruling — and this season’s big cases likely won’t be announced until May or June 2022 — the parallel court can deliberate quickly and move in unpredictable directions.
In other words, there could be even more legal turmoil this season at the US Supreme Court.
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