Justices Take On Major Abortion Rights Challenge | What The New SCOTUS Abortion Case Could Mean For A Breyer Retirement

May 18, 2021

The Supreme Court yesterday decided it was time to end the waiting game and finally agree to wade into the contentious debate over abortion. Now an ultra-conservative court with a 6-3 split along ideological lines, SCOTUS plans to hear a case concerning a Mississippi law that will give its new majority the chance to chip — if not chop — away at the constitutional right to abortion that the Supreme Court established nearly a half-century ago. The Mississippi law seeks to ban most abortions after just 15 weeks of pregnancy, which is about two months earlier than Roe v. Wade and other subsequent decisions have allowed. A ruling from justices that is favorable to the state could lay the groundwork for even more restrictions on abortions.

SCOTUS handed an important victory to fossil fuel companies yesterday — though John Schwartz with The New York Times reports the industry got far less than it had asked for. Baltimore is trying to compel fossil fuel companies to help pay for the costs of combating climate change due to their direct and disproportionate contributions to the growing crisis. But justices ruled 7-1 to send the climate change case back down to the Court of Appeals for the Fourth Circuit to reconsider the industry’s demand that it review a lower-court decision to have the case proceed in state courts. Schwartz notes, “The issue of whether to hear these cases in federal or state court has been a major point of contention in about 20 similar cases filed around the country.”

The Supreme Court also said on Monday that a decision from last term that held the Constitution requires unanimous jury verdicts for state criminal trials does not apply retroactively. The justices ruled 6-3 along ideological lines in what has been seen as a blow to criminal justice reform in Louisiana and Oregon where hundreds of cases have been called into question because nonunanimous juries have been historically allowed in those states. Justices had to decide whether applying their 2020 decision to ban split juries retroactively would warrant “watershed” status — a high bar related to ensuring that there is “fundamental fairness and accuracy” in criminal proceedings. JUSTICE BRETT KAVANAUGH wrote for the majority that watershed status had not been reached. “Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.”

The Supreme Court declined to make it easier for police to enter private homes and conduct searches without a warrant when it ruled unanimously yesterday that police in Rhode Island went too far when they entered a home to search for a gun belonging to a man who had agreed to seek a mental health evaluation. They found that an exception to the Fourth Amendment for “community caretaking” does not allow police to enter and search a home without a warrant. JUSTICE CLARENCE THOMAS wrote for the court that although police officers are called upon to perform many civic tasks beyond their normal duties, it is not “an open-ended license to perform them anywhere.”

“The Supreme Court has placed itself back on the frontlines of the U.S. culture wars by taking up major cases on abortion and guns, with rights cherished by millions of Americans – and potentially the future of the nation’s top judicial body itself – on the line. And to add to the drama, rulings in the two cases are expected to come next year in the run-up to mid-term elections in a politically polarized United States that will decide if PRESIDENT JOE BIDEN’S fellow Democrats maintain control over both chambers of Congress.” That’s Andrew Chung and Lawrence Hurley with Reuters noting the Supreme Court has decided to unleash itself and wade directly into hot button issues — some of which have been made even hotter thanks to former PRESIDENT DONALD TRUMP and his false claims of a stolen election. The outcomes of new cases the justices have taken up could have serious implications for the midterms, and they write, “Wins for conservatives in the gun and abortion cases may actually help Democrats in the 2022 elections by angering and motivating liberal voters, according to some experts.”

“For more than 20 years, JUSTICE STEPHEN BREYER has authored the Supreme Court’s decisions endorsing abortion rights. With Monday’s news that the court will hear a case that could gut Roe v. Wade next session, a new question has emerged: Will a desire to influence the outcome affect the 82-year-old justice’s decision on whether to retire this summer? Monday’s action casts in stark relief the dilemma of retirement timing and the consequences of the late liberal JUSTICE RUTH BADER GINSBURG’S decision to remain on the bench through her 80s.” Joan Biskupic with CNN puts the Supreme Court’s decision to take on a major abortion case in context with a possible retirement announcement from the high court’s eldest justice. “The Ginsburg effect cannot help but be entangled with the choice facing Breyer. And the abortion-rights dilemma adds to the many elements that could steer his timing. For any justice, the decision typically involves a nuanced consideration of personal factors, institutional concerns and political realities.”