GW Law Panelists Discuss Cases before the Supreme Court

Free speech, abortion rights, gun rights and religious freedom are on the docket this term of the country’s highest court.

Supreme Court Photo
GW Law faculty members Alan Morrison and Sonia Suter spoke to an audience gathered virtually and in the Jacob Burns Moot Court Room. Three other panelists (Elie Mystal, Mark Joseph Stern and GW Law professor Catherine J. Ross) participated virtually.
October 18, 2021

By Greg Varner

Legal experts gathered Wednesday to discuss cases currently on the docket of the U.S. Supreme Court and make educated guesses about their outcomes.

Panelists for the event, held in the Jacob Burns Moot Court Room of the George Washington University Law School, included GW Law faculty members Alan Morrison, Sonia Suter and Catherine J. Ross. Visiting panelists included writer Elie Mystal of The Nation and Mark Joseph Stern, Supreme Court correspondent for Slate, who also served as moderator.

Mr. Mystal, familiar to viewers of MSNBC as an animated and witty commentator on legal issues, focused on New York State Rifle & Pistol Association v. Bruen, a gun rights case.

“The Supreme Court is on a long-term crusade to obliterate what few gun regulations we currently have on the books,” he said.

In its landmark decision in District of Columbia v. Heller, Mr. Mystal noted, the court created a right to gun ownership for self-defense. The present case goes further, seeking to establish that gun regulation violates citizen’s rights under the Second Amendment.

The state can require you to get a license if you want to drive a car or sell alcohol, but the plaintiffs in this case argue that it should not have the power to require a permit to carry a weapon. The New York State Rifle and Pistol Association has been joined by urban public defenders who have filed amicus briefs.

Representing urban clients, the public defenders argue that the state’s permit requirements are racist and are applied in a racially biased way. While their arguments are correct, Mr. Mystal said, their conclusion is wrong.

“Instead of promoting civil rights, which would be helpful,” he said, “they promote gun rights.”

“I think they’re going to win,” he added.

Discussing City of Austin, Texas, v. Reagan National Advertising of Texas Inc., Mr. Morrison said, “This is a case in which the city of Austin has decided that billboard advertising is different if it’s got electronic flashing lights on it.”

Advertisers believe they can increase profit by having billboards capable of changing messages. The city of Austin maintains that flashing lights have a negative impact on vehicular traffic and contribute to aesthetic blight.

Does the size of the signs matter? Should it make a difference if the sign is on the property of a business? What about organizations that argue that they should have the right to publicize their message on a flashing billboard?

“There’s lots of interesting questions, and the court will probably make it all perfectly clear,” Mr. Morrison said, eliciting laughter.

Legislative Censure

Does an elected body have the authority to censure the speech of its members? The balance between the right of legislators to speak and the right of legislatures to discipline is at issue in Houston Community College System v. Wilson.

In her discussion of this case, Dr. Ross explained that David B. Wilson, a member of the public board that administers Houston’s extensive community college system, became an irritant almost immediately after his election, accusing the board of corruption and placing robocalls criticizing its policies. He hired private investigators to inquire into the activities of members.

The board censured Wilson for what it viewed as inappropriate and reprehensible speech. He then filed suit, arguing that this was impermissible retribution.

“The government is entitled, when it is the speaker as opposed to when it is reviewing someone else’s speech, to choose the ideas it wants to promote, the way it wants to promote them, and to have a clear viewpoint,” Dr. Ross said.

By censuring, she noted, the government distances itself from obnoxious speech and counters it with more and better speech. Congress has exercised this privilege regularly.

It can be used to censure speech that is racist, anti-Semitic or antidemocratic. The U.S. House of Representatives voted earlier this year to bar Marjorie Taylor Greene, a member from Georgia, from serving on committees.

This privilege to censure can also be used for bad purposes, such as when Julian Bond, the civil rights worker and antiwar activist, was elected to the Georgia House of Representatives. That body’s members refused to seat him, citing what they viewed as his anti-American speech. Ultimately, the U.S. Supreme Court ruled that Bond must be seated, but could be disciplined once he was a member.

Which outcome in the current case best promotes First Amendment values? The question has divided experts.

Religious Freedom and Abortion

Parson v. Makin, a religious freedom case out of the state of Maine, was presented by Mr. Stern. The central question it raises is whether taxpayers should be required to fund religious education.

In Maine, the population is so sparse that half of the state’s counties don’t have public secondary schools, and students in those places have to enroll in private schools. But the state’s constitution guarantees the right to public education, so Maine tax dollars pay for students to attend the private school of their choice, as long as the curriculum is roughly equivalent to what is taught in the state’s public schools.

“Maine does not say that religious schools can’t get state funding through this program,” Mr. Stern said. “Maine just says that those religious schools are not allowed to include religious education as part of the curriculum when they accept state funds.”

Increasingly, people have argued that to exclude parochial schools from public funding is to discriminate on the basis of religious status. Such schools, Mr. Stern noted, can be antigay to the extent that they expel children of same-sex couples.

“I think it’s really obvious where this case is going,” Mr. Stern said. He predicts the Supreme Court will rule against the state of Maine and kick down the remaining barriers to government funding of religious education, reversing longstanding American practice.

The case Dobbs v. Jackson Women’s Health Organization concerns a Mississippi statute enacted in 2018 that bans abortions after 15 weeks’ gestation. This contradicts the precedent set in Roe v. Wade, in which the court ruled that women had a constitutional right to abortion but drew the line at viability (around 23 weeks), when the fetus has a reasonable chance of survival outside the womb.

At that point, the court said, the state has a compelling interest in fetal life—but before viability is reached, a woman has the right to choose. Women don’t need that right any longer, the state of Mississippi is arguing, because contraception is widely available and work and family are more easily balanced.

The draconian Texas Heartbeat Act, recently enacted in Texas, bans abortions at the point at which you can detect the fetal heartbeat, around six weeks. Most women don’t even know they’re pregnant until several weeks later than that.

Various states have previously attempted to make abortions illegal prior to viability but without success, with the Supreme Court reluctant to enter the fray. What makes the Texas law different is its enforcement mechanism, which encourages citizens to report their neighbors, essentially acting as bounty hunters. The law implicates anyone helping someone get an abortion, even Uber drivers who may not know where their passengers are going.

“If the law goes into effect,” Ms. Suter said, “even if it’s ultimately deemed unconstitutional, a lot of providers will be gone forever” — and there will be a lot of people who are irreparably harmed.