Those analysts and advocates exhausted by the week’s big Supreme Court cases had one more chore this morning as the 2018–19 term came to an end: the Court’s release of “orders” accepting and rejecting cases for the next term that begins in October.
The big news is that the Court is finally agreeing to hear a bundle of cases involving the Trump administration’s judicially thwarted efforts to end Barack Obama’s DACA (Deferred Action on Childhood Arrivals) executive order. DACA, promulgated in 2012, has provided roughly 800,000 “Dreamers” (a term derived from the long-proposed, never-enacted Dream Act giving those with clean records who were illegally brought into the country as children a path to citizenship) work permits and protection from deportation. Trump issued his own order canceling DACA in September of 2017, but multiple district courts, backed by the Fourth and Ninth Circuit Courts of Appeals, have put a hold on this revocation on grounds that the administration is not offering a valid rationale. The administration has been trying to get SCOTUS to intervene for some time now, and that will happen at some point in the fall with oral arguments.
Any decision on the DACA cases is likely to come down in the spring or early summer of 2020, just in time to augment fights over immigration policy in the 2020 presidential election. The cases could also affect perennial negotiations between the administration and Congress over immigration policy, in which Dreamers have often been a bargaining chip. If the oral arguments suggest a strong likelihood the Court will let Trump have his way on DACA, it could increase pressure for a legislative solution for Dreamers.
In another notable part of today’s orders, the Court refused to hear a challenge to a lower-court invalidation of a 2016 Alabama law outlawing dilution and extraction (D&E) abortions — which the state insists on calling “dismemberment abortion” — the primary method used in the small minority (about 7 percent) of abortions that occur in the second trimester of pregnancy, or after 15 weeks. As Robert Barnes notes, there was little or no chance of the law being upheld under existing Supreme Court precedents:
It has never gone into effect, because a district court judge and then a reluctant panel of the U.S. Court of Appeals for the 11th Circuit said that, under Supreme Court precedent, it placed an undue burden on a woman’s right to abortion before fetal viability.
The law is distinct from the statute passed this year by the Alabama legislature that would virtually outlaw abortion in the state. That law has yet to start its way through the legal process.
But in concurring with his colleagues’ rejection of a request to review the 11th Circuit holding, Justice Clarence Thomas again served notice that he was more than ready to overturn precedents (especially the Planned Parenthood v. Casey decision that affirmed and modified Roe v. Wade and created the “undue burden” standard) and let states regulate abortions freely:
This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control. Earlier this Term, we were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2). Today, we are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution. Gonzales v. Carhart, 550 U. S. 124, 169 (2007) (THOMAS, J., concurring). Although this case does not present the opportunity to address our demonstrably erroneous “undue burden” standard, we cannot continue blinking the reality of what this Court has wrought.
The big question is how many of the four other justices in the Court’s conservative bloc quietly agree with Thomas. SCOTUS hasn’t accepted any other abortion cases for the next term, but that could change as restrictive state laws and challenges to them bubble up from Republican-controlled state legislatures.
