FORECASTS & TRENDS E-LETTER
by Gary D. Halbert
January 4, 2022

IN THIS ISSUE:

1. Overview – Much On Our Plate For 2022

2. 2022 To Be Big Year For The Supreme Court

3. Landmark Abortion Case Expected In June

4. Critical Gun Rights Case To Come Before Court

5. Liberal Groups Threaten Conservatives On Court

Overview – Much On Our Plate For 2022

Well, we made it to the New Year without any major disruptions as many had feared. So, Happy New Year everyone! I look forward to serving you all another year. I did contract Covid-19 during the week between Christmas and New Year’s, but it was pretty mild overall. I am, however, confined to isolation at home until symptoms go away, but I’m doing fine.

There is much I could write about today as we kick off a New Year. So much so it was difficult to decide on a lead topic. However, there is one theme which is getting very little attention in the media but has major implications for the country going forward. That is the Supreme Court.

The High Court has agreed to hear a significant number of potentially landmark cases this year and as such is expected to have its busiest year in recent memory. Jonathan Turley with George Washington University has written a very good analysis of the important cases facing the Supreme Court in 2022. I’ll summarize it for you as we go along today.

2022 To Be Big Year For The Supreme Court

The late Justice Ruth Bader Ginsburg once observed that “It’s hard not to have a big year at the Supreme Court.” However, there are some years that are bigger than others. That’s what 2022 is shaping up to be.

In 2021, the Court agreed to hear a series of transformative cases with few available exit ramps, or easy ways to resolve them. It recently added to that list. In other words, it is likely to issue historic rulings on abortion, gun rights, the 2nd Amendment, religious liberty, disability discrimination and an assortment of other issues in 2022.

The fact that the Supreme Court is going to hand down such decisions in a major election year is also noteworthy. The Court tends to be more conservative in the selection of cases before major elections, but 2022 will put the Court at ground zero in one of the most heated elections in history.

For those calling to “pack the court” to ensure a liberal majority, the already heated debate is likely to reach near hysteria if the conservative majority rules as expected in some of these cases in the first half of 2022.

Here’s just a partial list of what is coming in the new year:

Landmark Abortion Case Expected In June

The country is anxiously awaiting a decision by June in Dobbs v. Jackson Women’s Health Organization. At issue is whether Mississippi can impose a 15-week limit on abortions. That is earlier than previously allowed by the Court, but the United States is one of only seven among the world’s 198 countries to allow abortions after 20 weeks. While the Court could simply overturn Roe v. Wade and return the controversial issue to the states, it is more likely the Court will increase the authority of the states while recognizing constitutional protections for such reproductive rights. That could result in a major reframing of “previability” cases where fetuses are deemed not yet ready to survive outside the womb.

After Dobbs was accepted, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The Court ruled 5-4 to allow the Texas law to be enforced. The Biden administration and other litigants then forced a reconsideration of that decision. The Court — as expected — allowed the appeal to go forward for some of the litigants in the lower court but again refused to enjoin the law. To make matters worse, it declared the Biden administration’s appeal to be “improvidently granted” – meaning it should not have reviewed the case.

It is unclear how the conservative-leaning Court will rule on Dobbs v Jackson, but any decision is likely to be controversial on one side or the other. Stay tuned.

Critical Gun Rights Case To Come Before Court

If Dobbs is a frightening thought for abortion advocates, New York State Rifle and Pistol Association Inc. v. Bruen is a potential gut check for gun control advocates. In the latest badly drafted gun law to go before the Court, New York has forced a challenge that could result in a major ruling reinforcing individual rights under the Second Amendment. The case deals with the Sullivan Act of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.” Bruen is likely to reinforce rights for concealed carry permits — negating a host of laws across the country. So, this one is also a potential game changer.

Agency Deference

While not often discussed with the “marquee” cases of the term, such as abortion and gun control, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health. American Hospital Association (AHA) v. Becerra raises a highly technical question of a US Department of Health and Human Services rule that cut outpatient drug reimbursements to hospitals. The rule is based on an agency interpretation of vague statutory provisions — an interpretation which was defended under the deference afforded to agency decisions. (Notably, the Court has accepted a variety of other cases that could curtail agency authority, including West Virginia v. Environmental Protection Agency, which could also scale back efforts on climate change.)

The case is technically about outpatient care for Medicare Part B recipients; however, for some Justices, particularly Samuel Alito and Neil Gorsuch, it is all about Chevron and agency deference. Chevron USA Inc. v. Natural Resources Defense Council Inc. is a 1984 administrative law case that has come to embody the role of federal agencies in not just enforcing but creating law.

The so-called “Chevron Doctrine” has insulated agency decisions for decades from substantive review, giving federal agencies an overwhelming degree of authority in our system of government. Yet for many, the dominance of federal agencies has become equivalent to a fourth branch of government. The question is whether a critical mass has formed on the Court to substantially curtail that decision. If so, AHA v. Becerra could be a torpedo in the water for the Chevron Doctrine. This one bears watching closely as well.

New Cases

With these and other important cases on the docket, it is hardly necessary to add anything new to such a momentous year. Yet the Court is not done — by a long shot.

At the end of 2021, the Supreme Court dove into the raging debate over vaccine mandates. It ordered an expedited argument in three such cases for January 7. The appeal raises the legality of the emergency temporary standard issued by the Occupational Safety and Health Administration requiring a vaccine-or-test mandate for private employers with more than 100 employees. The case, again, raises core issues of agency deference as well as federal authority in this area. Courts have split on what White House Chief of Staff Ron Klain admits was a “workaround” of the limits on the president’s authority.

The Court is still mulling the case of Students for Fair Admissions Inc. v. President & Fellows of Harvard College, a Title VI case in which Harvard University is accused of rigging its admissions process against Asian American students. It’s the flip side of past racial preference cases in college admission, an area which has remained a morass of fractured or conflicting decisions for the Court.

This is just a partial listing of what is coming before the Supreme Court in the new year.

Liberal Groups Threaten Conservatives On Court

It is perhaps not surprising that Democratic members of Congress and liberal groups are threatening the Justices with “consequences” or even a “revolution” if they do not vote with the minority left of the Court. Such threats, however, may backfire. Not only is Chief Justice John Roberts the most popular public official today, but even liberal Justices have chafed at the claim this is a “conservative” or biased court.

The new year will test the design of our constitutional system in insulating the Court from such public pressures, even direct threats to the Court or individual Justices from politicians. It remains to be seen how the conservative majority on the High Court will vote on these sensitive issues, but it is clear emotions are very high on both sides of the political aisle.

Americans Say 2021 Was One of Worst Years Ever

For reasons which are not entirely clear, nearly half of Americans say 2021 was one of the worst years ever, according to the latest survey from Rasmussen Reports. Only 7% rated 2021 as a great or excellent year.

One reason cited by Rasmussen responders is the fact that 48% said they were worse off economically in 2021. Only 20% said they were better off financially at the end of last year. So, while the economy had a fairly strong year, and wages rose significantly for the first time in a long time, most people feel 2021 was apparently a bad year for them. I don’t get this.

And they are not very optimistic about 2022 as it pertains to their financial well-being, according to Rasmussen. This is a strange disconnect I have discussed recently and will revisit again soon.

Happy New Year,

Gary D. Halbert

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