Sunday, January 2, 2022
Welcome to 2022
Writers of blog posts and newspaper columns often can’t resist predicting what the new year might bring. And, for the most part, they are bad at this harmless exercise. I don’t claim to be better at it, but found it equally enticing to try. For appellate advocates, some predictions are easy to make. They are on a schedule. The coming six months, for example, will bring some blockbuster decisions from the Supreme Court. On its agenda for decision is the future of Roe v. Wade and the legal status of abortion, state authority to limit access to guns, the validity of congressional subpoenas for documents from a former president, and a potentially far-reaching decision on whether a State can deny religious-school participation in a student aid program.
A harder undertaking for an armchair Nostradamus is predicting the outcome of those cases, even though we have some strong clues in some instances. From the arguments, it appears that Mississippi’s 15-week limit on abortions will survive constitutional challenge. The Court need not overturn Roe and Planned Parenthood v. Casey entirely to reach that result, even if the result may allow those prior decisions to exist more in name than in precedential value. While Chief Justice Roberts could conceivably attempt to control the opinion by assigning it to himself and take the incremental approach he often favors to make the break with Roe less abrupt, I predict he will not be able to corral enough justices to that approach. Instead, his best hope is likely to pen a controlling plurality decision. I also predict that such an approach will not quell the political firestorm that will grow out of the decision, as well as others from the term.
It does not take a fortune-teller to know that New York’s 1911 Sullivan law will be overturned in the gun case argued in November. There, a clear majority seems likely to strike it down as incompatible with the Second Amendment. A strong concurring opinion will provide a blueprint for further challenges to state regulation of firearms, but it will not command five votes. Instead, I predict that the majority decision will look somewhat like last Term’s decision in Fulton v. City of Philadelphia, which held invalidated a city program that refused to make foster-care referrals to a Catholic social service agency because its religious beliefs prevented it from considering gay couples as foster parents. The decision provided no guidance for future cases, only agreement that the hypothetical discretion the city retained to make exemptions to its policy was fatal. That part of the decision was unanimous. However, a 6-3 line-up refused to go further and overturn Employment Division v. Smith. I predict a similar line-up will prevail to show a split in how far the justices are willing to go on guns, at least in this case.
Fulton will not provide a model in this Term’s religion case on student aid. In Carson v. Makin, a split decision will invalidate Maine’s program of paying secondary-school tuition at a private where no public school exists but excluding religious or sectarian schools. Though the immediate decision will affect very few students, the criteria the Court adopts is likely to expand the types of claims that can be made under the rubric of religious discrimination.
I also predict that the Court will act with unanimity in holding that former President Trump must turn over the subpoenaed documents sought by the House committee investigating the January 6 attack on the Capitol. The petition stage received expedited briefing and seems likely to be granted. The case recalls United States v. Nixon, in that the Court will similarly deem it critical to speak in one voice on the issue. To get there in Nixon, however, the Court recognized “a presumptive privilege for Presidential communications” that was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” It was lodging the privilege in the Constitution that was new in the decision and unnecessary to its result. I predict that an equally unnecessary discourse that adopts an expansive view of executive privilege, overcome in this case, to be articulated in the forthcoming opinion that will open the door future arguments not made or applicable to this case.
In addition, the hot-button issue of affirmative action seems destined to add to this very important term’s agenda based on a long-pending petition. Here, I predict a less diffident decision, holding it to be discriminatory in a sharply split decision. Finally, the year, even if not the current Term, is likely to also see important election law decisions, as I expect the upcoming state and congressional elections to generate an unprecedented amount of litigation.
And, if I’m wrong on any or all of this, there’s always next year! Happy new year.
 Roe v. Wade, 410 U.S. 113 (1973).
 Dobbs v. Jackson Women’s Health Org., No. 19-1392 (Argued Dec. 1, 2021).
 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
 New York State Rifle & Pistol Ass’n Inc. v. Bruen, No. 20-843 (Argued Nov. 3, 2021).
 Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021).
 Employment Div. v. Smith, 494 U.S. 872 (1990).
 Carson v. Makin, No. 20-1088 (Argued Dec. 8.2021).
 Trump v. Thompson, No. 21-932.
 United States v. Nixon, 418 U.S. 683 (1974).
 Id. at 708.
 Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199.