Retiring Supreme Court Justice Stephen Breyer will wrap up his final term on the high court this summer, but not before voting on a number of pivotal cases that may prove to be one of the most consequential terms of his nearly 28 years on the bench.
As Judge Ketanji Brown Jackson prepares to assume the role of associate justice in her succession of Breyer this summer, the present high court docket weighing on topics such as gun ownership, free speech, and abortion rights will give the forthcoming justice an out from displaying her opinions on contentious issues.
However, Breyer, along with the two other Democratic-appointed justices, Elena Kagan and Sonia Sotomayor, are largely expected to rule opposite of the six-member conservative majority on a number of key issues awaiting rulings before the end of the present 2021-22 high court session.
STEPHEN BREYER COULD CASH IN AS RETIRED SUPREME COURT JUSTICE BUT LIKELY WON’T
Dobbs v. Jackson Women’s Health Organization
Perhaps one of the most anticipated rulings of this term will be the decision in Dobbs v. Jackson Women’s Health, a lawsuit between the last remaining abortion clinic in Mississippi and the state itself.
The case relates to a Mississippi law passed in 2018 that prohibits abortion procedures after 15 weeks of pregnancy, to which Jackson Women’s Health Organization sued the state to stop its implementation.
Justices heard arguments over the state’s law last year and will decide whether or not a ban on abortions before viability is in violation of the Constitution.
“It is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure,” Breyer said in December, citing the 1992 case Casey v. Planned Parenthood. “To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.”
Republican-majority states have been emboldened by signals the court will make a ruling that will significantly weaken or overturn the ability to access legal abortion procedures this summer and have already begun crafting their own laws banning abortions.
New York State Rifle & Pistol Association Inc. v. Bruen
Two New York-based men are challenging the Empire State’s law that requires gun owners to provide sufficient reasoning to carry a firearm in public when applying for a concealed carry permit.
The Supreme Court heard arguments over the case in November. The court’s Republican-appointed majority appeared skeptical of the law’s requirement to demonstrate a “proper cause” for obtaining a license to carry a concealed pistol or revolver.
Breyer and the other liberal justices sought to poke holes in the would-be arguments of novel conservative court justices. They noted professors of history have made contradicting arguments related to gun rights history and expressed frustration in having to rely on history as it is unclear.
“This is a wonderful case for showing [how history supports] both sides. So, I am not sure how to deal with the history,” Breyer said during oral arguments.
Shurtleff v. Boston
High court justices weighed a significant First Amendment rights case earlier this year in regards to whether the city of Boston violated a group’s right to free speech.
When a Christian group applied to have a religious flag raised outside of Boston’s City Hall, the application was denied and prompted the group to sue.
Outside of Boston’s City Hall stand three flagpoles: two for the flags of the United States and the state of Massachusetts. A third flagpole typically raises Boston’s city flag but leaves it open for private groups to conduct commemorations in front of the building.
Carson v. Makin
Justices heard arguments in Carson v. Makin in December, a free-exercise challenge to a scholarship program in Maine that pays for some students to attend private schools but excludes from the program schools that provide any kind of religious instruction.
The court will examine a previous ruling related to the topic and determine if any religious freedoms and equal protection clauses were violated.
Kennedy v. Bremerton School District
Justices will hear arguments on April 25 in another First Amendment case titled Kennedy v. Bremerton School District, surrounding a dispute over a Washington state high school football coach who was placed on leave for leading postgame prayers on the field.
Former coach Joe Kennedy’s legal fight with the Bremerton, Washington, school district began in 2015, and the case eventually reached the Supreme Court in 2019, when justices declined to take it and said the case was for lower courts to decide.
West Virginia vs. EPA
The Supreme Court heard arguments in February over a lawsuit by a coalition of states and coal companies seeking to limit the Environmental Protection Agency‘s authority to regulate power plants’ greenhouse gas emissions, with the majority of justices appearing to see the agency’s power as narrow.
Justice Samuel Alito questioned whether there was any precedent that a stay would moot the case. And Justice Stephen Breyer, seemingly more aligned with his conservative colleagues, challenged the solicitor general’s claims that the U.S. Court of Appeals for the District of Columbia Circuit’s previous decision does not require the reimposition of the Obama-era Clean Power Plan.
Biden v. Texas
The high court will take up the case Biden v. Texas on April 26, which surrounds whether President Joe Biden’s administration can block the previous administration’s “Remain in Mexico” policy.
Biden suspended the “Remain in Mexico” policy upon taking office in 2021 and tried to end it in June. However, he was successfully sued by Texas and Missouri to reinstate it and lost an appeal to the Supreme Court by a 6-3 vote, refusing to intervene on an emergency basis.
The Supreme Court’s agreement to hear the case will mark the first time the court will rule on legal issues surrounding the policy created under former President Donald Trump’s administration.
Oklahoma v. Castro-Huerta
Justices will conclude their arguments for the term on April 27, when they hear Oklahoma v. Castro-Huerta, an examination of the scope of the court’s 2020 ruling in McGirt v. Oklahoma. Justices will determine “whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.”
The McGirt case was a landmark decision and drastically affected Oklahoma’s prosecution abilities after the 5-4 decision ruled that the eastern half of Oklahoma was Native American land. The decision allows tribal authorities to manage their own justice system through tribal courts if crimes are committed on tribal grounds and by members of federally recognized Native American tribes.
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Breyer, Sotomayor, Kagan, and the late Justice Ruth Bader Ginsburg joined Trump-appointee Justice Neil Gorsuch to form the majority for McGirt. Notably, Amy Coney Barrett, the most recent justice to be sworn in, was not on the court at the time of the decision.
