Theoretically this blog posts something of a legal nature every Monday.
Theoretically.
Well, if we're to do that, we should note that the Supreme Court goes into session today.
This session, moreover, promises to be a big one.
Here's something in the offering.
1. In New York Rifle & Pistol Association v. City of New York the court will consider whether New York's ban on transporting a licensed, locked and unloaded handgun to a home or shooting range is Constitutional.
Prediction: My prediction is the Court will say that ban is not Constitutional. The bigger question is whether the Court will go further and rule on how much of a right to carry there is. I'd expect a 5 to 4 decision on this one. My overall prediction is that the Court will rule that a right to carry is part and parcel of a right to keep, and state that the New York law was over broad, but not go further than that. It'll hint that "reasonable restrictions" are valid, but not say what they are.
2. In a case on abortion the court will look at whether a Louisiana law that restricts abortion clinics is unconstitutional.
Frankly, Roe v. Wade is widely, if quietly, regarded as defunct in the legal community and pretty much regarded as a poor job of jurisprudence at that. Almost everyone believes that its due to be worked over and the question is whether it will simply be reversed. The better legal views, irrespective of political view point, is that it should be, and only politics has kept that from happening.
Prediction: In this case, that could happen and the Court will strike down Roe v. Wade. My guess is that it will, and this issue will now go back to the states.
Ironically, while this will cause a howl in the left, the fact that the Court's decision in Obergefell was an item of judicial legislation will operate to mute that to some degree. In Obergefell the Court clearly overstepped its judicial bounds in order to leap ahead of a perceived societal direction and took over a legislative role. In returning something to the legislature it will be going in the opposite direction and those who would complain about that are hampered in complaining too much, as that becomes an argument of how much you ultimately think people should decide about their own states laws.
This will be a 5 to 4 decision.
3. Separation of church and state. This session the court will take up the issue of payments to religious schools in the form of various types of monetary aid.
Apparently this is banned by quite a few state constitutions so an issue that will be presented to the courts is whether or not a state can enact such a ban. It strikes me that it can, but some pundits are opining that this is likely to be struck down by the Court as a species of discrimination based on religion.
Prediction: I doubt that will occur, frankly. Particularly in a year in which the Court is going to take up guns and abortion. I just don't see it weakening its street cred by going one further with a case on the topic of the establishment clause.
Having said that, nearly everyone agrees that the current interpretation of the establishment clause is inconsistent with the original, as incorporated, goal, which was to keep the government from following the path of the English Crown and establishing a state religion. While that was clearly the original purpose, the Court long ago modified that interpretation substantially and stare decisis has operated in a much different manner. I don't see the Court really upending that much of the current law here.
This will probably be something like a 7 to 2 decision, but might be unanimous.
4. Obergefell is mentioned above and this session the Court will take up the question of whether an employee can be fired because the employee is a homosexual.
Prediction: Pundits seem to think that this will be a difficult decision for the Court but I don't think it will be. The Court isn't going to overrule Obergefell with this decision, which it would nearly have to not to find that firing a person for this reason is Unconstitutional. I'd expect a unanimous decision holding that a person cannot be so fired.
It won't go further than that, however, and reach an opinion on the same issue in regards to thinks like transgender employees.
5. The Electoral College. The Court will take up the question whether states can bind members of the electoral college to vote the results of their state's primaries, etc.
Prediction: This issue has never been in front of the Court before. My guess is that while such laws make instinctive sense, the Court isn't going to allow states to interfere with the Federal election system in this fashion and hold such laws Unconstitutional. I'd expect something like a 6 to 3 decision.
6. Immigration. There are apparently a variety of immigration cases before the Court. I don't know the details of them, but these will be hard fought cases.
Prediction: Frankly much of the argument on these cases will be outside the Constitution. For that reason, I expect the Court to largely rule, 5 to 4, that the Executive's authority here is vast and the President largely has a free hand as to his policies in this area.
7. Impeachment? The Court probably hopes not, but if this occurs, the Court may have to end up getting involved.
Prediction: It'll do everything possible not to get involved.
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