Gun laws, abortion rights: upcoming SCOTUS hearings to be impacted by RBG’s death

It’s been a year since Justice Ruth Bader Ginsburg died. Her seat on the bench is now occupied by Justice Amy Coney Barrett, the third judge appointed by former President Donald Trump. On October 4th, the court will resume in-person hearings -- and will also be the first time the bench will meet since RBG’s passing. Amy Howe, co-founder of SCOTUSblog, a website covering the Supreme Court, joins to discuss how the court has changed -- and what lies ahead.

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  • Michael Hill:

    Today marks the first anniversary of the death of Supreme Court Justice Ruth Bader Ginsburg. Former President Trump appointed Amy Coney Barrett to replace the late justice after previously appointing Neil Gorsuch and Brett Kavanaugh to the high court. On Monday October fourth, the justices will begin their next term– in person for the first time since the COVID-19 pandemic required them to hear cases remotely.

    For more on how the court has changed and what's ahead, I spoke with Amy Howe, co-founder of SCOTUSblog, a website covering the U.S. Supreme court.

    Amy, thank you so much for joining us. Please give us an idea of how much this court has changed since the passing of Ruth Bader Ginsburg just a year ago.

  • Amy Howe:

    The most immediate impact that we've seen of the death of Justice Ginsburg and the replacement by Justice Barrett has been on what's known as the shadow docket that request the emergency requests for the court to step in and block an execution to put a lower court ruling on hold.

    Recently, one of the most recent examples has been the request by abortion providers in Texas to put the Texas law barring almost all abortions after six weeks of pregnancy on hold. And so in that case, you had the chief justice, John Roberts, joining the court's now three liberal justices to say we should intervene and put this law on hold while we figure it out. But there were only four votes. You need five votes to put the law on hold.

    So I have no doubt that had Justice Ginsburg been on the court, the law would not be in effect in Texas right now.

  • Michael Hill:

    What's to come now as we talk about the cases that we already know about and what impact we have seen so far, what's to come? What should we anticipate going forward?

  • Amy Howe:

    There are two big cases coming up in the upcoming term, which starts on the first Monday in October on issues that are really near and dear to conservatives, abortion and gun rights. And in both of those cases, I think these are scenarios in which there were four conservative votes that may not have been quite certain where the chief justice might have stood or whether or not he would be willing to go ahead and issue kind of a broad sweeping ruling on abortion rights and on gun rights. But now that they have Justice Barrett, they're likely more confident that they've got a fifth vote.

    And so the question is, is the court going to overrule Roe vs. Wade that there's a case it's likely going to be argued in December called Dobs vs. Jackson Women's Health Organization. And it's a challenge to a Mississippi law that bans most abortions after 15 weeks of pregnancy. And the state in that case has asked the court to overrule Roe vs. Wade and Planned Planned Parenthood vs. Casey, which are the cases establishing a woman's right to an abortion.

    And then in November, the Supreme Court's going to hear oral argument in a case called New York State Rifle and Pistol Association vs. Bruin involving the right to carry a gun outside of your home. The Supreme Court said about 10 years ago that there is a basic right to have a handgun in your home, but didn't really say much more than that. And the conventional wisdom, obviously, we don't know what's going on inside the Supreme Court, but the conventional wisdom is that there were four votes to say more about what the Second Amendment means outside the home, but that they weren't sure about the chief justice.

    But Amy Coney Barrett, as a judge on the U.S. Court of Appeals for the 7th Circuit, had written a dissent in a gun rights case and suggested she might be more open to a ruling on gun rights. So those are two cases that we're watching very closely where it seems like the death of Justice Ginsburg and the nomination and confirmation of Justice Barrett could really make a difference.

  • Michael Hill:

    Is it me or is it reality that a lot of the justices have been speaking lately? We're talking about Barrett. We're talking about Justice Stephen Breyer. We're talking about Clarence Thomas of the University of Notre Dame.

  • Amy Howe:

    Certainly Justice Breyer has a new book to promote. So that explains a lot of his appearances, certainly. But we've heard from Justice Barrett and from Justice Thomas. And I think one possibility is that the justices may be kind of sensitive to the criticism of their ruling in the Texas abortion case, their ruling in the federal eviction moratorium case.

    And so they are speaking out because they are worried about the perceptions of the court and they want to push back against the idea that the court is divided or partisan, particularly as they get ready to start a new term in which they're going to be hearing these high profile cases on issues on which the court is likely to be divided again. And then, of course, Justice Breyer has been promoting his book, but he has been getting a lot of questions about retirement. And so we will be on Justice Breyer retirement watch all year long.

    It's hard for me to see him not retiring after this term. But one thing that I've learned is that when I make predictions about the Supreme Court, I'm often wrong. So, we'll certainly see and find out probably sometime in late June, early July.

  • Michael Hill:

    Amy Howe is the co-founder of SCOTUSblog. Amy, thank you for joining us.

  • Amy Howe:

    Thanks so much for inviting me.

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