The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!
This week, the Supreme Court of the United States (SCOTUS) opened a new term that is sure to provide numerous opportunities for civics classrooms to deliberate current and societal issues related to justice, liberty, safety, freedom, and power. The new SCOTUS term will also use judicial review to tackle essential questions related to limited government, federalism, and separation of powers.
Dr. Steven D. Schwinn, Professor of Law at the University of Illinois at Chicago School of Law, joined the Illinois Civics Hub (ICH) this week to provide educators with a SCOTUS PREVIEW. Dr. Schwinn provided an overview of cases to watch and responded to educator questions about the cases.
Cases included in Dr. Schwinn’s preview included:
- Dobbs v. Jackson Women’s Health Organization Whether all pre-viability prohibitions on elective abortions are unconstitutional.
- New York State Rifle & Pistol Association Inc. v. Bruen Whether the state of New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
- Carson v. Makin Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.
- Shurtleff v. Boston(1) Whether the U.S. Court of Appeals for the 1st Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers; (2) whether the 1st Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and (3) whether the 1st Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.
Some other cases court watchers have their eyes on are:
- Ramirez v. Collier (1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.
- CVS Pharmacy Inc. v. Doe Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.
- The United States v. Zubaydah Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
- Federal Bureau of Investigation v. Fazaga Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
- Shinn v. Ramirez Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.
Dr. Schwinn also did a review of the implications of Whole Women’s Health v. Jackson, the Texas Abortion case recently in the news with the “Shadow Docket.” According to SCOTUS blog, this case addressed. “Whether the Supreme Court should issue an injunction (pending appeal and disposition of a petition for certiorari) to prevent enforcement of Texas S.B. 8, which bans abortions if the physician detects a fetal heartbeat and allows private citizens to sue anyone who assists in providing an abortion that is prohibited by the law; (2) whether the Supreme Court should vacate the U.S. Court of Appeals for the 5th Circuit’s administrative stay of the district-court proceedings as to respondent Mark Lee Dickson; (3) whether the Supreme Court should vacate the district court’s stay of its own proceedings as to the remaining respondents; and (4) whether the Supreme Court should vacate the district court’s order denying the respondents’ motions to dismiss and remand the case to the 5th Circuit with instructions to dismiss the appeal from that order as moot.”
If you missed the webinar, you can view a recording on the ICH Webinar Archive. The Illinois Civics Hub also has toolkits aligned to the proven practices of civic education outlined in the middle and high school course mandates to help teachers use this teachable moment in the classroom.
- The Safe and Reflective Classroom Toolkit can help engage student voice to create classroom norms to discuss essential questions posed by this SCOTUS term as well as tools to reflect on learning,
- The Direct Instruction on Democratic Institutions Toolkit provides resources to learn more about the institution of the U.S. Supreme Court and the role of the courts in the separation of powers and checks and balances.
- The Current and Societal Issue Discussion Toolkit provides resources for classroom discussion as well as reliable background information to ground discussions.
- The Simulations of Democratic Processes Toolkit provides resources to conduct your own Moot Court to explore the concept of judicial review as content and practice.
- The Informed Action through Service Learning Toolkit provides ideas to take learning about SCOTUS outside of the classroom. Be sure to peruse the narrative of how students used a SCOTUS free speech case last term to take informed action to impact school district policies.
The Illinois Civics Hub and Democracy Schools Network are hosting free after-school PD this fall from many of the organizations highlighted above, including the News Literacy Project, the Stanford History Education Group, and Facing History and Ourselves. A description for each webinar and information to register for professional development credits is available on the Illinois Civics Hub Professional Development Calendar.