The new Supreme Court term starts this week and some big fights are on the docket.

The first big Second Amendment case in 10 years involves a New York City law - since changed - that attempted to confine gun rights to the home and seven specific firing ranges.  Plaintiffs in the case include gun owners who want to go to other firing ranges and another gun owner who wants to transports guns between two homes.   The Supreme Court could decide to dismiss the case as moot because there’s a new law changing all of this, or use the occasion to expand gun rights.

An abortion case involves a Louisiana statute almost identical to one the Court struck down in 2016 requiring abortion doctors to have admitting privileges at a nearby hospital.   The 2016 Court said it’s difficult get the credential and it does little to make abortions safer.  This time around, the Court could follow the same logic and declare the Louisiana law unconstitutional as an “undue burden” on abortion rights, using standard analysis from the 1992 Planned Parenthood v. Casey  decision.  But the Court could affirm the judgment from the 5th Circuit below upholding the statute - opening the door to more health regulations in the abortion industry - or even overturn Roe v. Wade entirely.

Three LGBTQ employment cases are before the Court this term - two involving gay men and one involving a transgender who were all terminated from their jobs.  At issue is whether the word ‘sex’ in Title VII of the Civil Rights Act can be puffed up by the courts to include sexual orientation and gender identity even though Congress didn’t write it that way.  If the Supreme Court plays along, then employment law in these cases would get federalized and states could no longer make their own decisions in these matters.  I bet there are a lot of lawmakers around the country, who have had plenty of time to take up this issue, who wish the Supreme Court would take this problem off their hands so they don’t have to decide it or face the voters on it. 

There are three DACA cases before the Court.  It’s pretty much conceded at this point that President Trump has authority to terminate the DACA program and could do so tomorrow, even though these cases are pending.  The lower courts in these cases all agreed that the judiciary may not review an administration decision on the DACA program made for policy reasons.  The problem is the DHS memo stating the administration’s intent to wind down DACA gives a legal reason, not a policy reason, for doing so.  This is pretty arcane, but you may recall the Court split 4-4 on the legality of the similar DAPA program - Deferred Action for Parents of Americans.  It could be the Court will use the occasion to rule more broadly on whether such programs are legal in the first place. 

Finally, depending on when the 5th Circuit makes its decision, the Texas Obamacare case could be before the Supreme Court this term.  The argument follows John Roberts’ logic in the Obamacare decision in reverse.  Roberts’ upheld the individual mandate as a tax.  But the individual mandate tax has been zeroed out and, in effect, no longer exists.  The individual mandate is otherwise an unconstitutional overreach offending the Commerce Clause.  Because the mandate is now unconstitutional and was the essential linchpin of the entire law, the entire law should be struck.  Stay tuned on this one.  

The title of Justice Neil Gorsuch’s new book, due out Tuesday September 10th, will be familiar to every Tea Partier: A Republic, If You Can Keep It.

The book is a collection of essays, speeches, past opinions, and thoughts on the separation of powers, civil liberties, and the role of judges under the Constitution.  Gorsuch believes originalism and textualism are the best guides to interpreting the Constitution and protecting our freedoms. 

Justice Gorsuch is “everything conservatives hoped for and liberals feared,” the liberal dean of the UCal Berkeley law school, Erwin Chemerinsky, told the Washington Post.  While on the Supreme Court, Gorsuch voted to uphold the travel ban on certain Muslim and other countries, to add a citizenship question to the census, and to allow a ban on transgenders in the military to go into effect.  But he is a maverick, sometimes siding with the liberals, for example, in a case overturning a precedent allowing local and federal prosecutions for the same offense.  Gorsuch is not afraid to revisit the Court’s earlier jurisprudence.  In his two terms on the Court, he has voted to overturn, or suggested taking a fresh look at, established precedent 11 times. 

But the most interesting aspect of the book to me is the connection he draws between civic education and mutual respect in political discourse on the one hand, and self-governance and popular sovereignty on the other.  He is distressed that people don’t understand the basics of the separation of powers.  “Only about a third of Americans can identify the three branches,” Gorsuch told the Washington Post. “Another third can only name one branch of government.”  Ten percent thinks Judge Judy serves on the Supreme Court, he went on to say.  

Gorsuch is worth reading because he discusses the duty of every American to help maintain the Republic.  It is not a given we will always have a Republic.  It takes work to maintain one.  It’s either that or go back to having a tiny elite rule over us because we are too lazy to govern ourselves. 

Gorsuch is also worth reading because he is young - he just turned 52 - and prolific: he writes more pages of opinions than any other Justice currently sitting on the Court.  This is somebody who is going make his mark on constitutional jurisprudence well into the next generation.  He will influence the direction of the Court and the country on important issues of public policy for decades to come.