The 2019-2020 U.S. Supreme Court term officially kicked off today with oral argument in the case of Kahler v. Kansas. This is the first full term with Justice Brett Kavanaugh, and many conservatives — especially those of a perhaps more sanguine judicial disposition than yours truly — eagerly anticipate what they hope will be important rulings in disparate hot-button legal areas such as abortion, gun rights, transgenderism and homosexuality, and immigration. Here are some key cases (with predictions!) and key broader themes to watch for, from a conservative perspective.
- June Medical Services, LLC v. Gee: This is the most important abortion case since 2016’s disappointing result in Whole Women’s Health v. Hellerstedt, which nullified the underlying Texas pro-life statute at issue. In Gee, the justices will grapple with two important questions: (1) Whether Louisiana’s hospital admitting privileges law for abortionists complies with the “undue burden” constitutional standard first promulgated in 1992’s infamous Planned Parenthood v. Casey, and (2) whether so-called “third-party standing” doctrine for abortionists should be doctrinally revisited. PREDICTION: Kavanaugh and Chief Justice Roberts write a plurality opinion that upholds Louisiana’s law while very narrowly paring back Casey‘s “undue burden” standard. But the chief justice joins liberals to secure continued liberal standing requirements for abortionists.
- New York State Rifle & Pistol Association Inc. v. City of New York, New York: This is the first Second Amendment case that the justices have taken since 2010’s landmark City of Chicago v. McDonald, which incorporated the individual right to keep and bear arms — as articulated by the Court two years prior in District of Columbia v. Heller — against state governments. In the comparably minor case of City of New York, the nine robed oracles will assess whether New York City’s “ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits” is reconcilable with the Second Amendment’s individual right established in Heller and McDonald. PREDICTION: New York City’s ban will be overturned on a standard 5-4 ideological judicial split.
- Altitude Express Inc. v. Zarda (consolidated with Bostock v. Clayton County, Georgia): In what is perhaps my personally most anticipated consolidated case of the term, the justices will adjudicate whether Title VII of the 1964 Civil Rights Act, which bans employment discrimination because of “sex,” necessarily also bans employment discrimination because of sexual orientation. The obvious and common sensical answer, using standard tools of statutory interpretation, is a resounding “no.” But the Court oftentimes does not supply the correct answer in these seemingly straightforward legal questions, especially where cultural currents strongly point in the sexual liberationist direction. PREDICTION: Kavanaugh defects to join the liberals in a 5-4 judicial re-writing of Title VII to accommodate sexual orientation. Thomas and Alito write scathing dissents, as Kavanaugh’s reputation as moderate is solidified early in his tenure.
- Trump v. NAACP (consolidated with two other cases): At long last, the black-robed oracles of the Court will finally deign to decide for us flyover state plebeians whether then-President Barack Obama’s unconstitutional DACA executive amnesty may be rescinded by President Trump. The very fact that this is a viable legal issue — let alone a high-profile one — is, of course, dispiriting. But much like the so-called “travel ban” case of Trump v. Hawaii, the presence of the “orange man” as a named party to a lawsuit tends to enflame the passions of the judicial #resistance. PREDICTION: Trump’s executive rescinding of Obama’s unconstitutional amnesty is upheld, but only after the chief justice and Kavanaugh first both side with the liberals in erroneously finding that Trump’s rescinding of the policy is judicially reviewable, in the first instance.
- Will Kavanaugh move to the right or solidify his centrist bona fides as the chief justice’s wingman? Kavanaugh had a complicated initial partial term on the Court. He found himself in the majority more than any other justice, and emerged as the closest ally on the Court to new, post-Anthony Kennedy “swing vote” Chief Justice Roberts. Kavanaugh generally finished the term in strong fashion, although there were a number of hiccups along the way on issues as wide-ranging as the death penalty and antitrust. I tend toward pessimism when it comes to Kavanaugh — he is, at his core, a Beltway Republican establishmentarian and not a man of Thomas/Scalia-esque originalist juridical convictions. I unfortunately predict more disappointment from Kavanaugh this term, with the consolidated Title VII cases being my best guess for a high-profile case where Kavanaugh will disappoint conservatives.
- Will Justice Neil Gorsuch’s libertarianism — especially on criminal law — continue unabated? While of a decidedly stronger originalist hue than Kavanaugh, Gorsuch’s second full term on the Court solidified jurisprudential traces that we first saw emerge in his disastrous 2018 concurrence in Sessions v. Dimaya — namely, that of pro-criminal libertarianism. Toward the end of last term, Gorsuch ruled in disappointing fashion in the “unconstitutionally void for vagueness” case of U.S. v. Davis and the mens rea requirement case of U.S. v. Rehaif. In Rehaif, Gorsuch was joined in the majority by Roberts and Kavanaugh, but in Davis — likely the more pernicious of the two, from the perspective of opening the litigation floodgates to habeas corpus challenges — he joined the liberal bloc alone. Criminal law comprises a plurality of the Supreme Court docket, and it is deeply dispiriting for law-and-order conservatives to see Gorsuch emerge as an ally of the Left in judicially imposing de facto jailbreak initiatives. It is easy for a conservative to be tough on Kavanaugh, but Gorsuch’s mishaps also demand scrutinizing eyes.
- How, if at all, will the chief justice respond to bipartisan attacks on the Court? The chief justice, ever concerned with non-legal, extraneous concerns such as the Court’s “institutional integrity,” is uniquely susceptible to well-orchestrated P.R./media campaigns against him. The chief should expect much more of that this term, as it seems that the current Court pleases no one in particular — be they on the Left or the Right. Roberts has long been a disappointment to conservatives, and there is little reason to expect him to change course at this stage of his career on the Court. But it will nonetheless be interesting to monitor whether Roberts will feel compelled to speak up in similar fashion to how he did last term, when he condemned Trump’s comments about overtly partisan federal judges.
- Will conservatives finally resign themselves to ending this judicial supremacist charade, once and for all? This is, of course, the most important question of all. In a judicial supremacist world — that is, the anti-constitutional legal hellscape wrought by 1958’s power grab case of Cooper v. Aaron — the so-called “least dangerous” branch has transmogrified into something much more insidious. Under this faux-legal framework, arguably nothing is more important in the world of federal politics than judicial nominations. But playing the judicial supremacist game is systemically rigged against conservatives and, ultimately, is un-winnable. Will conservatives ever wake up?