Three Supreme Court Cases to Watch Beyond Abortion Rights

This will be the first full Supreme Court term with a conservative supermajority. While opinions have trickled out over the course of the year, June is when the Court tends to issue its biggest decisions, and this year will be no different.

With the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court appears poised to overrule Roe v. Wade — and nearly 50 years of precedent — slamming the door on protecting abortion rights under the federal Constitution. It is hard to overstate the draft opinion’s radicalism: it overrules a long-established constitutional right, indicates that doing so is analogous to overruling Plessy v. Ferguson and legalized segregation, and looks to historical practice in a way that makes many other fundamental rights vulnerable, including marriage equality and birth control.

Should a version of the leaked opinion become law, it will be possible because of the Court’s new 6–3 conservative supermajority. Without the need to win over “swing” justices, the conservative wing of the Court has little incentive to moderate its positions or embrace an incremental approach to legal change, much less look for ways to engage with the other side or avoid reaching divisive questions.

The leaked opinion makes clear that the future of reproductive rights is squarely in the Court’s sights. But Dobbs is not likely to be the only case where the Court upsets long-standing doctrine or radically alters government power, from regulating guns to tackling global warming. Among the many significant matters on the Court’s docket, we highlight three additional cases to watch where the Court’s supercharged conservative wing is likely to issue transformative rulings.

Two cases take aim at states’ policymaking ability. One is New York State Rifle and Pistol Association v. Bruen, which could gut limitations on who can carry concealed handguns. The other is Carson v. Makin, a school funding case that might finally allow conservatives to achieve a long-sought goal: mandated taxpayer funding for religious schools on the same terms as private schools. In a third case, West Virginia v. Environmental Protection Agency, the Court will consider the scope of the EPA’s power to address climate change. The decision in that case could substantially limit not only the EPA’s regulatory authority but also create new hurdles for the entire administrative state.

How the Court approaches these and other cases will be an early test of how much and how quickly its new supermajority intends to flex its muscles to reshape American law and society.

Second Amendment: New York State Rifle and Pistol Association v. Bruen

By Eric Ruben

This case addresses whether gun owners have a constitutional right to carry their arms outside their homes and, if so, whether restrictive concealed carry licensing laws violate the Second Amendment. It is the Court’s first big Second Amendment case since 2010, with substantial implications for states’ ability to regulate guns.

Overview

Bruen is a challenge to a New York State law limiting who can carry a concealed handgun in public. For more than a century, New Yorkers wanting a license to carry a concealed handgun for self-defense have needed to show that they have what the law calls “proper cause” — essentially a greater need for self-protection than others in the community. New York is one of eight heavily populated states — home to roughly one-quarter of Americans — requiring that people seeking to carry a concealed handgun have a heightened need to do so.

A judge determined that the plaintiffs in Bruen did not satisfy that standard. Both received concealed carry licenses, but they were restricted in where they could carry their handguns. For example, one plaintiff was issued a license to carry a concealed handgun while traveling to and from work, and both were permitted to carry concealed handguns for hunting, target practice, and in certain areas not “frequented by the general public.”

Along with the National Rifle Association’s New York affiliate, the plaintiffs sued, contending that the limitations placed on their licenses violate the Second Amendment. They argued that the Second Amendment protects their right to carry a handgun virtually whenever and wherever the need for self-defense might arise.

Legal Issues

The Supreme Court first ruled there was an individual right to bear arms under the Second Amendment in 2008, striking down a Washington, DC, ban on handguns in the home. Since then, the lower courts have decided over 1,400 Second Amendment cases about everything from felon-in-possession prohibitions to assault weapon bans.

These courts have borrowed from First Amendment doctrine, scrutinizing severe burdens on core Second Amendment rights more closely than less onerous ones. In assessing gun restrictions, courts consider, among other things, whether the laws sufficiently address modern public safety concerns. Under that approach, the consensus in the lower courts is that proper-cause laws like New York’s are constitutional.

One key legal question in Bruen is whether the Court will deploy this conventional approach or announce a new Second Amendment doctrine. Some gun rights advocates are urging the justices to declare that only constitutional text, history, and tradition should be consulted in deciding Second Amendment cases. That would be highly consequential because it would affect the Second Amendment analysis of all challenged weapons laws, not just proper-cause restrictions.

In Bruen specifically, New York has argued that since the law is more than 100 years old, it would pass such a historical test. But the plaintiffs interpret the historical lessons differently. The debate highlights a shortcoming of the text, history, and tradition approach: in practice, judges can cherry-pick historical facts and traditions to rationalize a desired outcome.

What Happened at Oral Argument

The discussion focused on history, and a majority of the Court expressed skepticism about the constitutionality of New York’s law. The questions and comments of the justices reflected predictable ideological divisions, with Republican-appointed justices conveying a more expansive vision of protected gun rights than their Democratic-appointed colleagues.

Possible Outcomes

The Supreme Court could uphold New York’s law, although that seems unlikely based on the oral argument. More likely is that the Court strikes down New York’s proper-cause requirement. This would keep in place licensing for concealed handguns but remove most of its teeth.

If that is the Court’s ruling, the next questions are what policy alternatives remain available and what the decision means for future cases. At oral argument, some, but not all, justices suggested openness to permitting bans on guns in broadly defined sensitive locations like the New York City subway. In another exchange, in response to a question from Justice Clarence Thomas, the plaintiffs’ attorney said that his clients had no intention of going into New York City with their handguns, which would provide a basis for the Court to limit its ruling to non-urban places. If the Court rules against New York, it will be important to see which, if any, alternative policy routes to licensing the justices acknowledge as constitutional.

With regard to future Second Amendment cases, the key question will be whether a majority of the Court mandates a new framework — such as the text, history, and tradition test — that would call into question other gun policies and invite a new round of litigation.

Authority of Federal Agencies: West Virginia v. Environmental Protection Agency

By Harry Isaiah Black

This case is about the scope of the EPA’s authority to regulate pollution from the energy sector, which accounts for a quarter of the U.S. emissions that are contributing to climate change. It has the potential to severely curtail the ability of many federal agencies — not just the EPA — to enact rules that address urgent societal challenges.

Overview

West Virginia is a challenge to an Obama-era EPA regulation known as the Clean Power Plan, which was designed to reduce carbon dioxide emissions from power plants. Relying upon powers under the Clean Air Act, the Obama plan required energy producers to transition away from burning coal to lower CO₂-emitting natural gas. In 2016, the Supreme Court halted the Obama plan prior to implementation — the first time the Court had blocked a regulation before a federal appeals court had reviewed it.

Trump’s EPA then repealed the Obama plan in favor of the Affordable Clean Energy rule, which required power plants to merely upgrade their equipment to burn coal more efficiently. On the eve of Joe Biden’s inauguration, the DC Circuit Court of Appeals struck down the Trump plan and invalidated the EPA’s revocation of the Obama plan, concluding that the agency had relied “on a mistaken reading of the Clean Air Act.”

Once Biden assumed the presidency, the EPA informed the appeals court that it did not intend to reinstate the Obama plan, in large part because market forces had already incentivized power plants to satisfy the regulation’s emissions targets. The DC Circuit then stayed the implementation of its order rejecting the EPA’s revocation of the Obama plan so that the agency could promulgate a new rule. But before the Biden administration could try its hand at regulating emissions from power plants, a collection of coal companies and Republican state attorneys general sought Supreme Court review of the DC Circuit’s ruling regarding the Trump EPA plan in order to prevent the EPA from reviving a version of the Obama plan.

Legal Issues

Because the Biden administration has said it does not intend to implement the Obama EPA plan, this case raises a serious jurisdictional issue. Under long-established principles, federal courts cannot issue advisory opinions on hypothetical disputes but rather must limit their rulings to real controversies. A threshold question, then, is whether the Court needs to wait for the EPA to issue new regulations or if it can go ahead and rule on a regulation that the agency is not seeking to implement. But the fact that the Court agreed to take this case suggests the lack of an operable regulation is unlikely to be seen as a barrier. Further, it would not be the first time the Court overlooked similar procedural hurdles. For instance, the Court enjoined New York Covid-19 restrictions no longer in force, effectively (and prematurely) resolving important First Amendment issues.

Assuming the Court reaches the merits of the case, it must decide whether the text of the Clean Air Act only permits the EPA to regulate how a given power plant operates (like the Trump plan) or also allows the agency to use incentives and targets to force an industry-wide transition from burning coal to a lower CO₂-emitting fuel (such as the Obama plan).

As part of their argument, the coal companies and states urged the Court to apply an interpretative principle called the “major questions doctrine,” which requires Congress to make a clear statement if it wants an agency to make “decisions of vast economic and political significance.” Though rarely used in the past, this principle was applied by the Court twice in just the last year, once to block the Biden administration’s vaccine mandate for large employers and once to lift a federal ban on evictions.

Its scope, however, has never been clearly defined. An expansive interpretation of the doctrine to foreclose any industry-wide regulation of greenhouse gases would dramatically curb the EPA’s power to address climate change — and spell bad news for agencies’ regulatory authority in other realms such as public health and the economy.

Another argument before the Court is that the relevant provisions of the Clean Air Act violate the “non-delegation” doctrine. Under that doctrine, Congress must provide an “intelligible principle” to guide the agency’s regulatory decision-making when it passes a law like the Clean Air Act that authorizes the agency to make rules. The Court has not found a violation of the non-delegation doctrine since Franklin D. Roosevelt was president. In recent years, however, several of the justices — including Clarence Thomas and Neil Gorsuch — have expressed a desire to breathe life back into it.

What Happened at Oral Argument

The justices spent substantial time on whether there was really a live case. The argument also focused on the scope of the major questions doctrine, with several justices grappling with whether it even applies to this case and, if it does, how to formulate the governing rule. Non-delegation received less attention, although Justice Amy Coney Barrett probed about the difference between the non-delegation and major questions doctrines.

Possible Outcomes

Given the complexity of the case, there is a range of possible outcomes. If the Court chooses to dismiss West Virginia on jurisdictional grounds, it could simply dismiss the case, or it could also vacate the DC Circuit’s decision striking down the Trump EPA rule, which would mean that the lower court order no longer has precedential effect.

If it reaches the merits of the case, the Court could uphold the Obama plan or limit the EPA’s ability to regulate power plant emissions only at the level of individual plant operations. A decision reaching the latter result under the major questions doctrine could spell trouble for all types of regulations, not just the EPA’s. The worst-case scenario for the EPA, though less likely, would be a ruling striking down the heart of the agency’s ability to regulate greenhouse gas emissions from the energy sector as a violation of the non-delegation doctrine. A ruling under either the major questions or non-delegation doctrines would require Congress to pass new legislation clearly stating that the EPA can adopt stringent regulations to combat climate change.

State Funding of Religious Schools: Carson v. Makin

By Harry Isaiah Black

This case addresses whether state and local governments that subsidize private education are required to fund religious instruction. It has the potential to redefine what counts as religious discrimination, an area where the Supreme Court has been recently upending well-established doctrine.

Overview

Carson v. Makin involves a constitutional challenge to Maine’s school “tuitioning” system, where the state covers the costs for rural students who don’t have a public secondary school in their district to attend an out-of-district school, including one out of state. This money may be applied toward private-school tuition, but under Maine law, the private institution must be “nonsectarian.” After Maine denied tuition assistance for several children to attend religious high schools, the parents of those children sued the state, claiming that the state’s tuition assistance program violates their First Amendment rights to freely express their faith.

Legal Issues 

For decades, the Supreme Court interpreted the Constitution’s Establishment Clause, which limits a state’s ability to promote religion, as prohibiting any state funding going toward religious activities or institutions. In 2002, the Court chipped away at that prohibition by holding that states could choose — but were not required — to allow voucher programs to fund education at religious schools. Perhaps applying that principle, the Court declined on two occasions to hear claims against the very tuition assistance program challenged in Carson, once in 1999 and again in 2006.

But in 2020, the Court flipped this rule on its head, concluding in Espinoza v. Montana Department of Revenue that states were obligated to fund religious schools if they subsidized private education. More specifically, the Court ruled that Montana could not prohibit students who received private scholarships — donations that were eligible for a tax deduction — from using that money to attend a private school that identifies with a religious faith. It was a major change in doctrine, but the Montana case also limited what counted as discrimination: whether a school’s mere affiliation with a religious institution could bar access to funding. The Court left open whether states could still prohibit funding to schools that actively teach religion in the classroom.

Carson raises this issue front and center because Maine says it only withholds money from schools that engage in religious instruction. And with the addition of another conservative justice to the Court since the Montana case — Amy Coney Barrett — the justices appear poised to require states to fund schools that provide religious instruction on the exact same terms as other private schools. It would be a major shift in just a few short years, dramatically limiting states’ ability to keep tax dollars away from schools that inculcate faith. And it’s part of a broader effort by the Court to redefine the requirements of religious liberty — by the second anniversary of Barrett’s confirmation, the Court will have adjudicated as many if not more such cases than the Court decided in all of President Obama’s eight years in office.

What Happened at Oral Argument

Members of the Court’s conservative majority suggested during the hearing that there is no constitutional difference between funding a religiously affiliated school and funding religious instruction. Drawing agreement from Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, Chief Justice John Roberts suggested that by subsidizing tuition at certain religious schools and not others, Maine impermissibly “draw[s] distinctions between religions based on their doctrine,” since some religions may require that faith be infused into instruction while others do not.

Separately, Justices Clarence Thomas and Barrett rejected the state’s contention that it does not discriminate against religion because Maine’s tuition assistance is designed to provide children with a “rough equivalent” of public education. Barrett noted that private and public schools are not necessarily similar, in that the former are sometimes single sex while the latter are usually coeducational.

Possible Outcomes

A few of the justices’ questions left open the possibility that the Court could avoid the merits of the case and rule on procedural grounds. Thomas suggested that the Court may lack jurisdiction over the case because it may not be able to redress the parents’ claims. Maine law bars entities from receiving state funds when they discriminate on the basis of sexual orientation, and the schools at issue have indicated they would refuse public money if that meant they could no longer exclude gay teachers and/or students.

Assuming the Court does not dismiss the case, it could punt on the issue of whether there is a constitutional difference between a school maintaining a religious affiliation and providing religious instruction if it concludes that Maine’s tuitioning system, like Montana’s scholarship tax benefit, actually discriminates on the former basis.

But based on oral argument, the most likely outcome is also the most dramatic: a broad ruling that states cannot prevent religious schools from receiving taxpayer funds.