by Jenny Hua

Since joining the United States Supreme Court in 2005, Chief Justice John Roberts has worked to develop his legacy as a centrist who builds coalitions to protect the legitimacy of the Court as an apolitical institution. That mission is grounded, at least in part, in doctrine of stare decisis. Even in his confirmation hearings, Roberts emphasized “the values of respect for precedent, evenhandedness, predictability, stability,” even where the precedent may be flawed.¹ He likewise advocated for narrow decisions to avoid “jolts” to the legal system. The addition of three Justices to his right—Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020—has disrupted Justice Roberts’ vision for the Court. With five Justices to his right, Roberts is no longer the fulcrum of the Court.

As Erwin Chemerinsky, Dean of Berkeley Law, explained: to understand this term of SCOTUS, you “don’t do so by looking at judicial methodology and certainly not precedent, but rather do so by looking at the Republican Party Platform.” In the term ending in June of this year, nineteen cases were decided six to three, and nine cases were decided five to four, with the conservative- appointed justices prevailing in each of those twenty-eight cases. Also notable is that of the eleven Ninth Circuit decisions reviewed by the Court this Term, the Court reversed in all eleven cases. Likewise, the eight decisions from the historically liberal First Circuit (which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) resulted in eight reversals. That stands in sharp comparison against the records of the historically “conservative” Seventh Circuit (which covers districts in Illinois, Indiana, and Wisconsin) and Eleventh Circuit (which covers districts in Alabama, Florida, and Georgia). Only one of three decisions from the Seventh Circuit was reversed, as was one of four decisions from the Eleventh Circuit.

As the Court continues to evolve, we examine two of the most recent and highly publicized cases of this Term that illustrate breaks with longstanding precedents and follow new legal paradigms that reject a constitutional right to abortion and the right of states and localities to impose restrictions on gun rights.

Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022)
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) already has been controversial. From the leaked draft opinion in May 2022 to the decision’s broad and immediate implications for reproductive rights in over a dozen states, the case remained front page news for months.

In Dobbs, the sole Mississippi facility providing abortion services and one of its providers challenged the constitutionality of Mississippi’s Gestational Age Act. The Act provided that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. § 41–41–191.

In an opinion penned by Justice Alito, the Court found that the right to obtain an abortion is not “rooted in the Nation’s history and tradition” and not an “essential component of ‘ordered liberty.’” The Court thus held the U.S. Constitution does not provide a right to abortion, leaving the authority to regulate abortion “to the people and their elected representatives.”

In so holding, Dobbs overruled a long line of abortion-related cases, including Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which held that the right to an abortion is part of a constitutional right to privacy. Specifically, Casey held that the right to an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. The Casey court thus created a so-called “undue burden” test, under which a statute would be struck down if it posed an undue burden ­on an individual’s fundamental right to seek an abortion. The Casey Court also acknowledged that the balance of interests may change depending on the viability of the fetus, holding “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

It is not so shocking that the newly-formed Court would uphold the Mississippi restriction. But the Dobbs majority went further than merely upholding the Mississippi restriction; the Court held that Roe and Casey were wrongly decided. Indeed, the majority found Casey to be “egregiously wrong and on a collision course with the Constitution from the day it was decided,” as it “short-circuited the democratic process.” The majority indeed found Casey to be poorly reasoned, deemed Casey’s undue burden test to be unworkable, and found that Roe and Casey had “led to the distortion of many important but unrelated legal doctrines.” Perhaps most surprising to some was the Court’s conclusion that overruling Roe and Casey would not “upend concrete reliance interests like those that develop in ‘cases involv[ing] property and contract rights.” Despite its conclusion that Casey was otherwise “egregiously wrong,” the Court cited the plurality in Casey for this proposition, which reasoned that traditional reliance interests were not implicated because abortion is generally an “unplanned activity” and that “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”

Justice Roberts penned a concurrence, which appears to be consistent with his statement in his confirmation hearing that he wished to avoid a “jolt” to the legal system. Roberts would “leave for another day whether to reject any right to an abortion at all,” but instead hold that if there’s any constitutional right to an abortion, that right ends once women have had “a reasonable opportunity” to obtain an abortion. This would have upheld the Mississippi restriction without removing all constitutional protections for the right to an abortion. But Roberts failed to persuade any other Justice to sign onto what the majority called his “middle way.”

The Dobbs decision is a reflection of the Court’s current composition. As recently as 2016, the Supreme Court applied the undue burden test to strike down two parts of a Texas statute that required all abortion providers to obtain local hospital admitting privileges and all abortion facilities to meet hospital-like building standards. See Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016). There, the Supreme Court held courts must consider evidence-based findings that rest on reliable methodology when they weigh the benefits of an abortion restriction against the burdens it creates. The Court found that despite Texas’s claim it enacted the statute for the health and safety of patients, the evidence did not support this claim, and instead showed that the statute would cause most of Texas’s clinics to close, leaving women without adequate access to abortion services.

As a result of Dobbs, states’ abortion restrictions are subject only to a “rational-basis review,” effectively ending constitutional protections for the right to abortion. Indeed, over a dozen states already passed trigger laws years ago that would restrict access to abortion upon the Supreme Court’s decision to overturn Roe v. Wade. See Jiménez, J., What is a trigger law? And which states have them?, N.Y. Times (Apr. 5, 2022), https://www.nytimes.com/2022/05/04/us/abortion-trigger-laws.html. As of August 2022, at least eight states have near total bans on abortions, and others are expected to pass further restrictions. The Indiana legislature, for example, passed a new law in early August to ban abortion from conception, with limited exceptions in pregnancies resulting from rape or incest or where the life of the mother is at risk. The ban, which went into effect on September 15, replaces a law that allowed for abortions up to the twenty-week mark.

Some question what Dobbs means for other rights not explicitly enumerated in the Constitution, but implicit in the constitutional right to privacy. While the Court emphasized that its decision concerned only the right to abortion and no other right, the rationale of the Dobbs decision foreshadows a risk for those other rights. Indeed, Justice Thomas makes clear in his concurrence that he would have gone further, calling for the Court to “reconsider all of this Court’s substantive due process precedents,” including the right to obtain contraceptives, the right to engage in adult private, consensual sexual acts, and the right to same sex marriage. It remains to be seen whether this Court will follow stare decisis regarding those privacy rights in future Terms.

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)
Another case this Term that redefined a constitutional right involved New York’s efforts to curb gun violence by limiting licenses to those who showed good cause for owning a gun.

In the District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), the Court deemed unconstitutional two laws that prohibited the possession and use of handguns. The courts of appeals subsequently adopted a “two-part approach” that “combines history with means-end scrutiny.” The latter required analysis of whether the regulation withstood either strict scrutiny (if it substantially burdened activity at the core of the Second Amendment) or—more often—intermediate scrutiny. In the more commonly applied test for intermediate scrutiny, the reviewing court considers whether a regulation is substantially related to an important government interest.

Under the challenged New York regime in Bruen, applicants could only obtain a license to “have and carry” a concealed pistol or revolver if they could demonstrate a special need for self-protection distinguishable from that of the general community. The Court in Bruen declined to adopt the two-part approach established in the earlier cases and eschewed any means-end scrutiny in favor of a single-step approach focused solely on history. In short, a law regulating the possession and use of firearms can only stand if the government can demonstrate that regulation “is consistent with this Nation’s historical tradition of firearm regulation.” It no longer matters what interest a state has in that regulation or how narrowly tailored the regulation may be. Dean Chemerinsky highlights this departure from the existing constitutional jurisprudence, explaining this represents “the first time the Court has used originalism to limit what the government can do” and gives the Second Amendment greater protection than any other right.

The Court’s new “history only” test raises the question: the historical traditions at what time? Making clear that “not all history is created equal,” the Supreme Court focused on the history around the time the constitutional right was adopted: 1791 for the Second Amendment.² The Court reasoned that “[h]istorical evidence that long predates either date may not illuminate the scope of the right” and did not credit the evidence of early firearm regulations in the English common law. The Court also warned that it “must also guard against giving postenactment history more weight than it can right bear.” Despite a long line of cases, including in Heller, where the Court deferred to the historical interpretation and public understanding of a constitutional provision, the Court emphasized that the text of the provision controls to the extent there is a conflict between the text and postenactment history.

The Court then went on to further narrow the scope of the relevant history: because post-Civil Right discussions of the right to keep and bear arms took place more than seven decades after ratification of the Second Amendment, that “belated” history was secondary to the history around the enactment of the Second Amendment. Then, looking at the regulations in the hundred or so years preceding enactment of the Second Amendment, the Court found the broad English restrictions on the public carry of firearms that would “terrify the King’s subjects” did not preclude the “mere public carrying of a handgun.” The Court thus concluded that by the time the United States was founded, it was inconclusive that “English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.” Turning to statutes in the colonies, the Court found only a few statutes that prohibited the carrying of “dangerous or unusual weapons.”

Summarizing its journey through history, the Court found that “apart from a handful of late-19th-century jurisdictions, the historical record . . . does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.” Nor did the Court find “any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” The Court thus concluded the government had failed to meet its burden to identify an “American tradition justifying New York’s proper-cause requirement.” Although the Court acknowledged handguns may have been considered “dangerous and unusual” during the colonial period (and therefore banned), it reasoned that because handguns were now commonplace, they should no longer be subject to the same restrictions. In other words, the Court’s originalism looks at (certain) centuries’ old laws, but makes adjustments for modern realities related to the proliferation of firearms such as handguns.

The Court did not need to dismantle the use of a “means-end” analysis to strike down the challenged New York gun regulation. The Bruen opinion makes clear the majority would have found the New York regulation fails even intermediate scrutiny. The Court’s “history only” approach may cause confusion among lower courts who must do their best to determine whether each of the existing firearm regulations conforms to centuries-old traditions of firearm regulation. Perhaps trying to manage the impact of this decision, Justice Kavanaugh, joined by Chief Justice Roberts, penned a concurrence emphasizing Bruen does not prohibit states from imposing licensing requirements for carrying a handgun for self-defense. While the Court’s decision would affect regulations in six states (including New York and California) employing a “may-issue” regime, which gives the issuing authority discretion in issuing or denying a permit, it had no effect on forty-three states that employ objective “shall-issue” licensing regimes. It remains to be seen whether this will be sufficient to slow the flood of challenges that are sure to follow.

ENDNOTES
(1) Committee on the Judiciary, S. HRG. 109–158, Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States (2005), available at: https://www.govinfo.gov/content/pkg/GPO-CHRG-ROBERTS/pdf/GPO-CHRG-ROBERTS.pdf at p.144.
(2) The Court does not settle whether the history around the enactment of the Fourteenth Amendment is relevant.

Jenny Hua is an associate at Snell & Wilmer, practicing in areas of commercial litigation and appellate litigation. She also is Chair of the OCBA’s Appellate Law Section. She can be reached at jhua@swlaw.com.