IE 11 is not supported. For an optimal experience visit our site on another browser.

Abortion, guns top agenda for new Supreme Court term

The court could also take up disputes over public funding for religious education and consideration of a student's race in college admissions.
Image: The Supreme Court term that starts Monday will likely produce a major ruling on abortion as well as decisions on carrying guns outside the home, public funding for religious education and the consideration of race in college admissions.
The Supreme Court term that starts Monday is likely to produce a major ruling on abortion, as well as decisions on carrying guns outside the home, public funding for religious education and consideration of race in college admissions.Shahrzad Elghanayan / NBC News; Redux; AP; Getty Images

WASHINGTON — The Supreme Court is gearing up for a blockbuster term beginning Monday that is likely to produce the most important ruling on abortion in 30 years and a long-awaited decision on the issue of carrying guns outside the home.

The court will also take up a dispute over public funding for religious education, and it could plunge back into the controversy over considering a student's race in college admissions.

"I think we're going to look back at this as the year in which the conservatives really did fully take over the Supreme Court and American constitutional law, where they got what they were really looking for on the big, hot-button issues that affect all of Americans' lives," said Tom Goldstein, a lawyer who argues frequently before the court and publishes the website SCOTUSBlog.

The court announced in May that it would consider a challenge to a Mississippi law that would ban most abortions after 15 weeks of pregnancy. Since then, Texas has passed an even stricter measure, banning abortions after about six weeks.

The justices brushed off a request from opponents to put the Texas law on hold last month, but further challenges are certain to return before the court's term ends in June.

The Mississippi case presents a direct challenge to the court's 1973 landmark Roe v. Wade ruling and a follow-on decision in Casey v. Planned Parenthood, which said states can impose some restrictions on abortion but cannot ban it before fetal viability, generally considered to be 23 to 24 weeks into a pregnancy.

A federal judge blocked enforcement, saying the state chose "to pass a law it knew was unconstitutional to enforce a decades-long campaign" against Roe v. Wade. The 5th U.S. Court of Appeals affirmed the ruling, so the state appealed to the Supreme Court.

Mississippi at first said upholding its law would not require overturning the court's abortion precedents. But in a later filing, the state took a more aggressive position, arguing that "the conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."

Paul Smith, a veteran Supreme Court litigator who teaches at Georgetown University's law school, said the court is unlikely to entirely accept or reject Mississippi's position but could, instead, seek a middle ground.

"They could narrowly rule that it's not an undue burden" to ban abortions after 15 weeks "under the notion that you still have to give people the opportunity to access abortion services," he said.

The justices took nearly a year to decide that they would take up the Mississippi challenge. "That doesn't suggest that they were grabbing on to the case to attack Roe and Casey," said Jeffrey Wall, who was acting solicitor general at the Justice Department during the Trump administration.

Gun rights, church-state divide

The justices will also take up a central issue of the gun rights debate, which they have consistently ducked since they ruled in 2008 that the Second Amendment protects an individual right to keep handguns at home for self-defense.

The court will hear a challenge to a New York state law that allows residents to carry concealed handguns only if they can demonstrate special needs, beyond a general desire for self-protection. Opponents say the law makes it virtually impossible for ordinary law-abiding citizens to get the necessary license.

Federal courts have split over the meaning of the Second Amendment's declaration of a right to keep "and bear" arms. A Supreme Court ruling could clarify how much states can restrict gun ownership without violating the Constitution.

A case from Maine invites the justices to dive back into the issue of public support for religious schools. Many states ban using public money to subsidize churches or religious education. But the Supreme Court ruled last year that when states set up systems to provide money to parents to pay school tuition, they cannot leave religious schools out of the programs.

The decision, in a case from Montana, said states cannot discriminate against schools simply because of their religious status, meaning they are operated by religious organizations. This year's case invites the court to consider the next question: Can states exclude schools from tuition programs that explicitly offer religious education?

Race in college admissions

Before the term is over, the justices might also take up the controversial issue of considering race in college admissions. The court has upheld the practice in the past, ruling that schools can consider a student's race as one factor in the process. But with its more conservative makeup, the current court may not agree.

A longtime opponent of affirmative action has urged the court to hear an appeal in a lawsuit accusing Harvard University of discriminating against Asian American applicants. Lower courts ruled that the school's limited consideration of race was a legitimate effort to achieve a more diverse student body.

Harvard's challengers, Students for Fair Admissions, urge the justices to overrule their 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor for applicants and was a model for similar admissions programs nationwide.

The term seems likely to produce a string of conservative victories on abortion, guns and religion.

"The conditions for the right to run the table have never looked better," said Irv Gornstein, executive director of Georgetown Law School's Supreme Court Institute.

"If within the span of two to three terms we see sweeping right-side decisions on every one of the most politically divisive issues of our times, the perception of the court may be permanently altered," he said. "Not since Bush v. Gore has the public perception of the court's legitimacy seemed so seriously threatened."

Carrie Severino, a conservative legal activist and former law clerk for Justice Clarence Thomas, said there is no principled middle ground for the court to land on in some of the most controversial cases, including the dispute over abortion.

"Many of the justices are fed up with the way Roe v. Wade has contributed to the politicization of the court and may want to allow the states to deal with it," Severino said. "You'd see more closely where the American people are on this issue."

The end of the term will again produce speculation about whether Justice Stephen Breyer, who will turn 84 in August, intends to retire. He was under pressure in June to step down while Democrats controlled by the White House and the Senate. But Breyer, who was nominated to the court by President Bill Clinton, suggested that such partisan considerations would be inappropriate for justices, who should act based on their judicial philosophies, not politics.