SCOTUS: It all hangs in the balance (or lack thereof) – Innovate Long Island

By MICHAEL H. SAHN //

The United States Supreme Court has convened for what promises to be a monumental new term, filled with cases touching on the most divisive and controversial issues confronting our nation.

Abortion rights, gun control and the separation of church and state specifically, taxpayer aid for students attending religious schools are all on the agenda for SCOUTSs first full term with its current 6-3 conservative majority, and the courts return to in-person arguments after a year of virtual hearings.

The term commenced against a backdrop of eroding support for SCOTUS as an institution. In a recent Gallup poll, only 40 percent of Americans approve of the courts work, a new low; in July, the court had a 49 percent approval rating, and as recently as 2020, its approval rating was 58 percent.

The latest poll was taken after the court declined to block the controversial Texas abortion law, allowed college vaccine mandates to proceed and denied the extension of a federal moratorium on evictions during the pandemic. Those are obviously conservative red flags, but the courts approval has declined among people of all political affiliations, mirroring a general decline of confidence in the federal judiciary.

Michael Sahn: SCOTUS notice.

In separate writings and interviews, Justices Breyer, Thomas and Alito have publicly defended the court against charges of partisanship; Justice Barrett also refuted that SCOTUS is a bunch of partisan hacks. The justices are sensitive to criticism that their decisions are based on their policy preferences rather than judicial philosophy.

Chief Justice Roberts will need to steer the court through these challenges, since the courts decisions in this term will have broad effects on national laws and deeply influence the publics perception of the court as an institution.

Perhaps the most significant case the court will consider this term involves a Mississippi law banning abortions after 15 weeks of pregnancy, except in cases of medical emergencies or fetal abnormalities. The 15-week timeframe directly challenges the standard set by Roe v Wade, which set the Constitutional right to terminate a pregnancy at 24 weeks.

No matter how the court decides the Mississippi case, it will set off a wave of new laws and cases dealing with abortion access.

The court will also hear a case stemming from New Yorks gun licensing law, enacted over a century ago, regulating the right to carry concealed firearms outside the home. This is the first major Second Amendment case SCOTUS has taken since 2008, when it ruled that a person has a right to keep a gun at home for self-defense.

The New York law requires that to carry a concealed weapon in public, the license applicant must prove a good reason, or proper cause, for a permit; this case challenges the proper cause requirement. The question before the court is whether the states denial of the petitioners applications for concealed-carry licenses for self-defense violates the Second Amendment; in its brief filed with the court, the State argues that New Yorks proper cause requirement furthers the states profound interest in promoting public safety and preventing gun violence.

Packing heat: New York concealed-carry laws are just one of the hot topics on the Supreme Courts agenda.

If the court rules that the New York law violates the Second Amendment, the likely result will be a significant increase the number of legally carried guns in New York and other states. Notably, gun license applications have surged in both Nassau and Suffolk counties during the pandemic.

Clearly, as gun control is such a debated topic, the courts ruling here will put it squarely in the middle of a divisive issue.

The court will also consider a case from Maine questioning whether Maine can exclude religious schools that offer sectarian education from a state-backed tuition-aid program. This debate follows a case from Montana last year where SCOTUS overturned a provision of Montanas Constitution banning aid to schools operated by churches; in that case, the court ruled that Montana had to allow religious schools to participate in programs that provide scholarships to students.

Other high-profile cases before the court this term involve capital punishment including the case of Dzhokhar Tsarnaev, convicted of the Boston Marathon bombing. Prosecutors want his death sentence, tossed last year due to jury-selection concerns, reinstated.

Meanwhile, SCOTUS continues to issue decisions with wide implications for private property owners and municipalities that impose regulations on the use and development of property a very big deal for Long Island, where land use is heavily regulated.

Dzhokhar Tsarnaev: Terrorist on trial, again.

In a 6-3 decision issued in June, the court likened the protection of property rights to the preservation of freedom by deciding that a California regulation giving union organizers access to privately owned agricultural property where they could attempt to organize workers constituted a taking under the Fifth Amendment, entitling the property owners to compensation.

This case may well portend more expansive decisions from the court that call into question various regulations giving municipalities the right to inspect properties for health and safety violations and other purposes regulations that currently require owners to allow governments access to their property. Although the court sought to distinguish those types of regulations, the door is now open.

These and other politically charged cases place the court in the position of determining the direction of major social and economic issues no less so than the federal governments Executive and Legislative branches while fueling debate on the state and local levels. Given the likely absence of consensus or compromise, SCOTUSs decisions will doubtlessly create more scrutiny, too.

Michael H. Sahn, Esq., is the managing member of Uniondale law firmSahn Ward PLLC, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firms clients in civil litigation and appeals.

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SCOTUS: It all hangs in the balance (or lack thereof) - Innovate Long Island