The Supreme Court has chosen to take up several highly contentious issues in its new term, among them cases involving guns, abortion, and religion. It’s a “very ambitious agenda” says Washington Post Supreme Court reporter Bob Barnes—and one he attributes to the recent changes in the makeup of the Court, which now has a 6-3 conservative majority, including three justices appointed by former President Trump.
Barnes spoke last week during a Constitution Day event hosted by the Batten School’s Virginia Policy Review. The conversation, moderated by Batten student Ethan Betterton (MPP ’22), took place in the historic Dome Room of UVA’s Rotunda.
While it remains to be seen how broadly or narrowly the Court will rule on these issues, Barnes noted that it had previously declined to take up similar cases. “So I think it’s really inescapable to say that the Court’s changed membership is the reason” it is willing to take up these issues now, he said.
For instance, the Court has decided to hear New York State Rifle and Pistol Association v. Bruen, which challenges a New York state law restricting who can carry a gun in public. The Court had already decided (in District of Columbia v. Heller, in 2008) that people have a constitutional right to own a gun in their home, Barnes said. “This case raises the question of what constitutional rights you have outside the home.” In the past, the Court has passed on these questions, Barnes said, noting that Justice Clarence Thomas has long pushed for the Court to take up a Second Amendment case. “It now has a majority that I think is much more favorable to gun rights,” he said. Taking up the case is a sign the Court is “ready to make a move in this area of Second Amendment rights.”
The Court’s decision to hear Dobbs v. Jackson Women’s Health, which challenges Mississippi’s law banning most abortions after 15 weeks, is another noteworthy choice. That case came to the Court while Justice Ruth Bader Ginsburg was still alive, Barnes said. Because it had languished for so many months, Barnes said he and other observers assumed the Court would decline to take the case, and might be waiting on a justice writing a dissent. Instead, Dobbs was added to the docket. In the interim, Justice Ginsburg has been replaced by Justice Amy Coney Barrett, who has criticized Roe v. Wade and acknowledged her personal opposition to abortion.
Barnes cautioned that the Court’s decision to hear the case now doesn’t necessarily mean they are ready to overturn Roe. “But it does mean the changed membership of the Court has had an impact on whether the Court is willing to look at these issues and see if there’s something else they should be doing,” he said—for instance, updating the guidance given in Planned Parenthood v. Casey, a 1992 case that addressed abortion restrictions (but upheld the constitutional right to abortion before viability, around 24 weeks). Oral arguments in the case will probably begin in December, Barnes said.
Meanwhile, the high-profile Texas law banning abortions after 6 weeks will face “lots of legal maneuvering in Texas” before it could make its way to the high court, Barnes said.
Finally, the question of religious freedom will be before the Court in the case of Carson v. Makin, which challenges a Maine law that publicly funded school vouchers cannot be used for schools that provide religious instruction. “There are trends at the Court, and certainly one trend is that religious organizations are having a much better time at the Supreme Court now than they have for a very long time,” Barnes said.
In the past, the Court has drawn the line that public funds cannot be used for religious instruction. But religious groups have won almost every case they have brought to the Court recently, he said, and they see the Carson case as a natural next step. “I would be surprised if that good run doesn’t continue,” he added.
A lingering issue is what happens when someone’s religious beliefs conflict with anti-discrimination laws. “The Court has picked at this twice,” Barnes said, referencing recent cases about a baker who refused to provide a cake for a same-sex couple’s wedding, and a Catholic foster care agency that did not want to license same-sex couples as foster parents. But both times, the Court’s decisions didn’t really settle the question. “I think the Court just isn’t ready to confront these cases head-on right now,” Barnes said. “That’s the big one that’s sort of waiting out there I think.”
While the Supreme Court’s term begins on Monday, new cases can be added through January. That leaves the door open for the Court to decide to take up additional issues, Barnes said, such as one of two cases involving affirmative action (one at Harvard, and one at the University of North Carolina). Reflecting on his work covering the high court, which he has done since 2006, Barnes closed the discussion with a reminder of the compelling constitutional questions the Court wrestles with each term. “To me, what’s interesting is not only am I learning about these nine people, [but] every year it’s fascinating issues, that are usually hard.”
