Supreme Court 2022: Abortion, Guns, a Leak, and a New Justice

Endnotes

[1] The “Shadow Docket” generally refers to orders of the Court, and more specifically to “Opinions Relating to Orders,” that are available at https://www.supremecourt.gov/opinions/relatingtoorders/21. There are thousands of orders each Term, which are available (for this Term) at https://www.supremecourt.gov/orders/ordersofthecourt/21. The controversies over the Shadow Docket are discussed later in this article.

[2] Alabama Assn. of Realtors v. Department of Health and Human Servs., 21A25, decided Aug. 26, 2021, https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf (this case was decided in August before the Term officially began in October 2021).

[3] Dobbs v. Jackson Women’s Health Organization, 19-1392, decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

[4] New York State Rifle & Pistol Assn. v. Bruen, 20-843, decided June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf.

[5] E.g., City of Tahlequah v. Bond, 20-1668, decided Oct. 18, 2021, https://www.supremecourt.gov/opinions/21pdf/20-1668_new_n7io.pdf; Rivas-Villegas v. Cortesluna, 20-1539, decided Oct. 18, 2021, https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pdf; Vega v. Tekoh, 21-499, decided June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf.

[6] Cummings v. Premier Rehab Keller, 20-219, decided April 28, 2022, https://www.supremecourt.gov/opinions/21pdf/20-219_1b82.pdf.

[7] Capital punishment cases were, numerically, probably the largest number of cases for any topic of the Term.

[8] In addition to the two big cases, there were a number of issues in the Shadow Docket.

[9] Dobbs v. Jackson Women’s Health Organization, 19-1392, decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. Five justices joined the majority opinion, and Chief Justice Roberts concurred. Justices Breyer, Kagan, and Sotomayor filed a joint dissent.

[10] Roe v. Wade, 410 U.S. 113 (1973).

[11] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

[12] Those have been bases for determining whether “substantive due process” protects a specific right.

[13] Dobbs v. Jackson Women’s Health Organization, Justice Kavanaugh concurring at 12.

[14] Dobbs v. Jackson Women’s Health Organization, Chief Justice Roberts concurring at 1.

[15] Dobbs v. Jackson Women’s Health Organization, Justices Breyer, Kagan, and Sotomayor, dissenting.

[16] Griswold v. Connecticut, 381 U.S. 479 (1965) (the “penumbras” from the 1st, 3rd, 4th , 5th, and 9th Amendments).

[17] The “process” becoming “substantive” right is the oxymoron. Dobbs v. Jackson Women’s Health Organization, Justice Thomas concurring at 1.

[18] This substantive due process is associated with Lochner v. New York, 198 U.S. 45 (1905), but had, in effect, been used by the Court for ten or fifteen years prior to that.

[19] West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

[20] A different suggestion is that another provision of the 14th Amendment might be the source of a right of privacy. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” That, however, on its face suggests that privacy would have to be a privilege or immunity of citizens of the United States, before it could be applied to the states, and it is right back to the problem of where that right exists.

[21] Obergefell v. Hodges, 576 U.S. 644, 654-70 (2015).

[22] Washington v. Glucksberg, 521 U.S. 702 (1997).

[23] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[24] Library of Congress, Table of Supreme Court Decisions Overruled by Subsequent Decisions, Constitution Annotated (2022), https://constitution.congress.gov/resources/decisions-overruled/

[25] Ramos v. Louisiana, 590 U.S. ___ (2020), Justice Kavanaugh, concurring, at 2 (citation omitted).

[26] “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” Dobbs majority opinion at 6.

[27] Whole Woman’s Health v. Jackson, 21-463, decided Dec. 10. 2021, https://www.supremecourt.gov/opinions/21pdf/21-463_new_8o6b.pdf. This was a complicated alignment of justices. Here is how the Reporter of Decisions described it, “GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.”

[28] The Court did allow a case against the licensing board for physicians prior to the law’s enforcement. Id.

[29] Guttmacher Institute, An Overview of Abortion Laws (July 11, 2022), https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.

[30] Guttmacher Institute, State Abortion Policy Landscape: From Hostile to Supportive (Dec. 2020), https://www.guttmacher.org/article/2019/08/state-abortion-policy-landscape-hostile-supportive.

[31] Rachel K. Jones, Elizabeth Nash, Lauren Cross, Jesse Philbin & Marielle Kirstein, Medication Abortion Now Accounts for More Than Half of All US Abortions, Guttmacher Institute Policy Analysis (Feb. 2022), https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions.

[32] District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010).

[33] There were also exceptions that allowed outside the home use for target shooting and hunting.

[34] The 2nd Amendment is applied to the states through the 14th Amendment. New York State Rifle & Pistol Assn. v. Bruen, 20-843, decided June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf. This was a 6-3 decision with Justice Thomas writing for the majority. Justice Breyer wrote a dissenting opinion in which Justices Kagan and Sotomayor joined.

[35] New York State Rifle & Pistol Assn. v. Bruen, Chief Justice Roberts and Justice Kavanaugh, concurring.

[36] New York State Rifle & Pistol Assn. v. Bruen, Justice Breyer concurring.

[37] New York State Rifle & Pistol Assn. v. Bruen, majority opinion at 9-15.

[38] Section 1983 refers to 42 USC 1983. It provides, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

[39] Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

[40] Rivas-Villegas v. Cortesluna, 20-1539, decided Oct. 18, 2021, https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pdf (internal quotation marks omitted). This was a unanimous, per curiam opinion.

[41] Vega v. Tekoh, 21-499, decided June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf. Justice Alito wrote for the Court. Justice Kagan wrote a dissenting opinion in which Justices Breyer and Sotomayor joined.

[42] Egbert v. Boule, decided June 8, 2022. Justice Thomas wrote for the Court, with Justice Gorsuch concurring in the judgment, and Justices Sotomayor, Breyer, and Kagan concurring in part and dissenting in part.

[43] Thompson v. Clark, 20-659, decided April 4, 2022, https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdf. This case was 6-3, but not the usual 6-3. Justice Kavanaugh wrote for the Court. Justice Alito dissented, joined by Justices Thomas and Gorsuch.

[44] Cummings v. Premier Rehab Keller, 20-219, decided April 28, 2022, https://www.supremecourt.gov/opinions/21pdf/20-219_1b82.pdf. This was a 6-3 decision. Chief Justice Roberts wrote for the Court. Justice Breyer wrote for the dissent.

[45] George v. McDonough, 21-234, decided June 15, 2022, https://www.supremecourt.gov/opinions/21pdf/21-234_2b8e.pdf. This was a 6-3 decision. Justice Barrett wrote for the majority. Justices Sotomayor, Gorsuch, and Breyer dissented.

[46] Torres v. Texas Department of Public Safety, 20-603, decided June 29, 2022, https://www.supremecourt.gov/opinions/21pdf/20-603_o758.pdf. This was a 5-4 decision with Justice Breyer writing for the majority and Justice Thomas writing for the dissent.

[47] Death Penalty Information Center, Number of Executions by State and Region Since 1976 (2022), https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-state-and-region-since-1976.

[48] Death Penalty Information Center, Size of Death Row by Year (2021), https://deathpenaltyinfo.org/death-row/overview/size-of-death-row-by-year.

[49] Hall v. Florida, 572 U.S. 701 (2014); Atkins v. Virginia, 536 U. S. 304 (2002).

[50] Coonce v. United States, 19-7862, decided Nov. 1, 2021, https://www.supremecourt.gov/opinions/21pdf/19-7862_k536.pdf. This was a 6-3 denial of cert. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. (“To my knowledge, the Court has never before denied a GVR [grant cert, vacate the judgement, and remand to the lower court] in a capital case where both parties have requested it….” Id. at 9.

[51] Hill v. Shoop, 21-6428, decided June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/21-6428_9p6b.pdf. Justice Sotomayor dissented from the denial of cert and was joined by Justices Breyer and Kagan.

[52] In Hamm v. Reeves, 21A372, decided Jan. 27, 2022, https://www.supremecourt.gov/opinions/21pdf/21a372_5436.pdf the Court (in the Shadow Docket) vacated a lower court injunction and permitted the execution to go forward. This was a 5-4 decision with Justice Barrett joining the three dissenters (but not joining their written dissent). The dissent was written by Justice Kagan, joined by Justices Breyer and Sotomayor. In the second case, Justice Sotomayor made a statement regarding the denial of cert. Smith v. Dunn,21-6005, decided Oct. 21, 2021, https://www.supremecourt.gov/opinions/21pdf/21a99_1an2.pdf.

[53] The amicus briefs are available through links at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-782.html. The briefs were filed by seven leading disability rights organizations, two former U.S. solicitors general, several scholars, “a group of conservative legal reform advocates,” experts in intellectual disability, and eight former prosecutors and judges.

[54] Young v. Georgia, 21-782, cert denied Feb. 28, 2022, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-782.html (votes on cert. are generally not reported by the Court, but there was no dissent or statement filed in the “Shadow Docket”). (Because no justice issued a Shadow Docket statement about the denial, the case is not included in the capital cases count in this article.)

[55] This is a regular docket case. United States v. Tsarnaev, 20-443, decided March 4, 2022, https://www.supremecourt.gov/opinions/21pdf/20-443_new_2d8f.pdf. This was a 6-3 decision. Justice Thomas wrote for the Court. Justice Breyer wrote for the dissenters with Justices Kagan and Sotomayor joining the dissent.

[56] Love v. Texas, 21-5050, decided April 18, 2022, https://www.supremecourt.gov/opinions/21pdf/21-5050_3dq3.pdf. This was a 6-3 denial of cert. Justice Sotomayor wrote for the dissenters and was joined by Justices Breyer and Kagan.

[57] Storey v. Lumpkin, 21-6674, decided June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/21-6674_6468.pdf. This was a denial of cert. Justice Sotomayor added a statement to emphasize the misconduct of the prosecutor (who told the jury that “all” of the victim’s family “believe the death penalty is appropriate.” In fact, the parents strongly opposed the death penalty).

[58] The 6th Amendment provides, in part, “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.”

[59] The case in which the Court referred to “a plethora of mitigating evidence” was Andrus v. Texas, 21-6001, decided June 13, 2022, https://www.supremecourt.gov/opinions/21pdf/21-6001_3d9g.pdf. Justices Sotomayor, Breyer, and Kagan dissented from the denial of cert. Justice Sotomayor dissented in a similar case, Canales v. Lumpkin, 20-7065, decided June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/20-7065_08m1.pdf. In another case claiming ineffective assistance of counsel, in which the Court denied cert, Justice Sotomayor made a statement urging courts of appeals to ensure defendants a fair hearing on ineffective assistance (and other) claims. Thomas v. Payne, 20-7480, decided Oct. 4, 2021, https://www.supremecourt.gov/opinions/21pdf/20-7480_4gdj.pdf.

[60] Faretta v. California, 422 U.S. 806 (1975).

[61] Shoop v. Cassano, 21-679, decided June 1, 2022, https://www.supremecourt.gov/opinions/21pdf/21-679_f2bh.pdf. Justices Thomas and Alito dissented from the denial of cert. They felt that a federal law precluded the appeals court from reversing the state court that upheld the conviction.

[62] Ramirez v. Collier, 21-5592, decided March 24, 2022, https://www.supremecourt.gov/opinions/21pdf/21-5592_feah.pdf. This was a 8-1 decisions. Chief Justice Roberts wrote for the Court. Justice Thomas dissented.

[63] Nance v. Ward, 21-439, decided June 23, 2022, https://www.supremecourt.gov/opinions/21pdf/21-439_bp7c.pdf. This was a 5-4 decision. Justice Kagan wrote for the Court, and Justice Barrett wrote for the dissent.

[64] Article I, Section 9, Clause 2, provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.”

[65] Shoop v. Twyford (2022), 21-511, decided June 21, 2022, https://www.supremecourt.gov/opinions/21pdf/21-511_o75p.pdf. This was a 5-4 decision, with Chief Justice Roberts writing for the majority. Justice Breyer wrote for there dissenters, and Justice Gorsuch dissented on different grounds.

[66] Brown v. Davenport, 20-826, decided April 21, 2022, https://www.supremecourt.gov/opinions/21pdf/20-826_p702.pdf. This was a 6-3 decision. Justice Gorsuch wrote for the Court and Justice Kagan wrote for the dissenters.

[67] Shinn v. Martinez Ramirez, 20-1009, decided May 23, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1009_19m2.pdf. This was a 6-3 decision. Justice Thomas wrote for the majority, and Justice Sotomayor for the dissent.

[68] Glossip v. Gross, 576 U.S. 863 (2015), Justice Breyer dissenting at 2 of the slip opinion.

[69] Buntion v. Lumpkin, 21A632, decided April 21, 2022, https://www.supremecourt.gov/opinions/21pdf/21a632_o7jq.pdf (statement of Justice Breyer); Smith v. Shinn, 21-1286, decided May 23, 2022, https://www.supremecourt.gov/opinions/21pdf/21-1268_0pm1.pdf (statement of Justice Breyer).

[70] Alabama Assn. of Realtors v. Department of Health and Human Servs., 21A25, decided Aug. 26, 2021, https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf. This was a 6-3 decision, with a per curiam opinion for the Court, and Justices Breyer, Kagan, and Sotomayor dissenting.

[71] Id. at 1, 8.

[72] NFIB v. OSHA 21A244, decided Jan. 13, 2022, https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. This was a 6-3 decision. The opinion of the Court was per curiam. Justices Breyer, Kagan, and Sotomayor issued a joint dissent.

[73] Biden v. Missouri, 21-240, decided Jan. 13, 2022, https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf. This was a 5-4 per curiam opinion. Justice Thomas wrote for the dissenting justices.

[74] Citing 42 U.S.C. S1395x(e)9.

[75] Does v. Mills, 21A90, decided Oct. 29, 2021, https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf; Dr. A v. Hochul, 21A145, decided Dec. 13, 2021, https://www.supremecourt.gov/opinions/21pdf/21a145_gfbi.pdf.

[76] Becerra v. Empire Health Foundation, For Valley Hospital Medical Center, 20-1312, decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1312_j42l.pdf.

[77] American Hospital Assn. v. Becerra, 20-1114, decided June 15, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1114_09m1.pdf.

[78] Gallardo v. Marstiller, 20-1263, decided June 6, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1263_new_hfci.pdf. This was a 7-2 decision, with Justice Thomas writing for the majority and Justices Sotomayor and Breyer dissenting.

[79] Controlled Substances Act (as codified) 21 U. S. C. §841; 21 CFR §1306.04(a) (2021).

[80] Ruan v. United States, 20-1410, decided June 27, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf. Justice Breyer wrote for the Court. This was a unanimous decision, although three justices (Justices Alito, Thomas, and Barrett) concurred in the judgment but had some differences with the Court’s majority. The case was consolidated with Kahn v. United States, 21-5261.

[81] Adam Liptak, Supreme Court Sides with Doctors Accused of Running Pill Mills. New York Times (June 27, 2022), https://www.nytimes.com/2022/06/27/us/politics/supreme-court-controlled-substance-act.html.

[82] Ruan at 14-15.

[83] The Hague Convention on the Civil Aspects of International Child Abduction of 1980. The U.S. is a signatory and it is implemented by the International Child Abduction Remedies Act.

[84] Golan v. Saada, 20-1034, decided June 15, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1034_b8dg.pdf. The was a unanimous decision. Justice Sotomayor wrote for the Court.

[85] Viking River Cruises v. Moriana, 20-1573, decided June 15, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1573_8p6h.pdf. This was a 8-1 decision, with a somewhat complex alignment of justices, “ALITO, J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined, in which ROBERTS, C. J., joined as to Parts I and III, and in which KAVANAUGH and BARRETT, JJ., joined as to Part III. SOTOMAYOR, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part and concurring in the judgment, in which KAVANAUGH, J., joined, and in which ROBERTS, C. J, joined as to all but the footnote. THOMAS, J., filed a dissenting opinion.”

[86] Viking River Cruises v. Moriana, Justice Thomas dissenting. This was a one-paragraph dissent.

[87] 9 U. S. C. §1 et seq.

[88] Southwest Airlines Co. v. Saxon, 21-309, decided June 6, 2022, https://www.supremecourt.gov/opinions/21pdf/21-309_o758.pdf. This was a unanimous opinion, written by Justice Thomas. (Justice Barrett did not participate in the case.)

[89] Morgan v. Sundance, 21-328, decided May 23, 2022. This was a unanimous opinion, with Justice Kagan writing for the Court, https://www.supremecourt.gov/opinions/21pdf/21-328_m6ho.pdf.

[90] Badgerow v. Walters, 20-1143, decided March 31, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1143_m6hn.pdf. Justice Kagan wrote for the majority. Justice Breyer dissented.

[91] ZF Automotive U. S. v. Luxshare, 21-401, June 13, 2022, https://www.supremecourt.gov/opinions/21pdf/21-401_2cp3.pdf. Justice Barrett wrote the decision for a unanimous Court.

[92] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This provision is applied to the states through the 14th Amendment.

[93] Kennedy v. Bremerton School Dist., 21-418, decided June 27, 2022, https://www.supremecourt.gov/opinions/21pdf/21-418_new_onkq.pdf. Justice Gorsuch wrote for the six-justice majority. Justice Sotomayor wrote for the three dissenting justices.

[94] Critical to the majority’s reasoning was a disputed assumption that, during the moments he prayed between the end of the game and re-entering the locker room, Coach Kennedy was acting as a private individual and not as a government-employed teacher. So, the decision does not necessarily greenlight religious displays by educators or other government employees acting in their official capacity.

[95] Carson v. Makin, 20-1088, decided June 21, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf. Chief Justice Roberts wrote for the majority of the Court. Justices Breyer, Kaga, and Sotomayor each wrote an opinion in dissent.

[96] Josh Blackman, Forget Carson! Remember the Maine Human Rights Act, Volokh Conspiracy (July 2, 2022), https://reason.com/volokh/2022/07/02/forget-carson-remember-the-maine-human-rights-act/.

[97] Biden v. Texas, 21-954, decided June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf. This was a 5-4 decision with Chief Justice Roberts writing for the majority, and Justices Alito and Barrett writing dissenting opinions.

[98] Johnson v. Arteaga-Martinez, 19-896, decided June 13, 2022, https://www.supremecourt.gov/opinions/21pdf/19-896_2135.pdf. This was a unanimous decision. Justice Sotomayor wrote for eight members of the Court, and Justice Breyere concurred in part and dissented in part.

[99] Garland v. Gonzalez, 20-322, decided June 13 2022, https://www.supremecourt.gov/opinions/21pdf/20-322_new_986b.pdf. This was a unanimous decision in part and a 6-3 decision in other parts. Justice Alito wrote for the Court. Three justices dissented in part.

[100] Patel v. Garland, 20-979, decided May 16, 2022, https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf. This was a 5-4 decision, with Justice Barrett writing for the Court, and Justice Gorsuch writing for the dissenters.

[101] West Virginia v. EPA, 20-1530, decided June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1530_new_l537.pdf. This was a 6-3 decision with Chief Justice Roberts writing for the majority. Justice Kagan wrote for the dissent.

[102] The Court has noted the possibility of a “major questions doctrine” several times but has not used it previously in a majority opinion to strike down a federal agency regulation. Congressional Research Service, The Major Questions Doctrine, In Focus (Apr. 6, 2022), https://crsreports.congress.gov/product/pdf/IF/IF12077.

[103] Id.

[104] Pub. L. 115–391, §404(b).

[105] Concepcion v. United States, 20-1650, decided June 27, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1650_new_4gci.pdf. This was a 5-4 decision. Justice Sotomayor wrote for the majority and Justice Kavanaugh for the dissenters.

[106] Federal Election Commission v. Ted Cruz, 21-12, decided May 16, 2022, https://www.supremecourt.gov/opinions/21pdf/21-12_new_k5fm.pdf. The decision was 6-3, with Chief Justice Roberts writing for the majority and Justice Kagan writing for the dissenters.

[107] The family was suing under the under the Foreign Sovereign Immunities Act of 1976.

[108] Cassirer v. Thyssen-Bornemisza Collection Foundation, 20-1566, decided April 21, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1566_l5gm.pdf. Justice Kagan wrote for a unanimous Court.

[109] FBI v. Fazaga, 20-828, decided March 4, 2022, https://www.supremecourt.gov/opinions/21pdf/20-828_5ie6.pdf. Justice Alito wrote for a unanimous Court.

[110] United States v. Vaello Madero, 20-303, decided April 21, 2022, https://www.supremecourt.gov/opinions/21pdf/20-303_new_21o2.pdf. This was a 8-1 decisions, with Justice Kavanaugh writing for the majority and Justice Sotomayor dissenting.

[111] Oklahoma v. Castro-Huerta, 21-429, decided June 29, 2022, https://www.supremecourt.gov/opinions/21pdf/21-429_8o6a.pdf. This was a 5-4 decision. Justice Kavanaugh wrote for the majority and Justice Gorsuch wrote for the dissenters.

[112] McGirt v. Oklahoma, 591 U.S. ___ (2020).

[113] Shurtleff v. Boston, 20-1800, decided May 2, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1800_7lho.pdf. This was a unanimous decision, although the Court was divided on the constitutional basis for the decision.

[114] There is some disagreement about the number of cases in a Term based on several factors. I use the SCOTUSblog.com count. There were 58 “signed” opinions, five per curiam opinions of the Court, two cases dismissed as cert. improvidently granted, and one affirmance with no opinion (because of a 4-4 tie).

[115] Josh Gerstein, The Lonely Chief: How John Roberts Lost Control of the Court, Politico (June 25, 2022), https://www.politico.com/news/2022/06/25/chief-john-roberts-court-00039237; Stephen I. Vladeck, Roberts Has Lost Control of the Supreme Court, N.Y. Times (April 13, 2022), https://www.nytimes.com/2022/04/13/opinion/john-roberts-supreme-court.html.

[116] The statistics reported in this section generally come from Angie Gou, Ellena Erskine, & James Romoser, SCOTUSblog Stat Pack for the Supreme Court’s 2021-2022 Term (July 1, 2022), https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf.

[117] Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico (May 2, 2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.

[118] Id.

[119] Michael Specter, Shot Fired Through Blackmun’s Window, Washington Post (Mar. 5, 1985), https://www.washingtonpost.com/archive/politics/1985/03/05/shot-fired-through-blackmuns-window/270a0516-2c7f-4c5e-9002-d017515a5131/. The assumption was that this was abortion-related, but may not have been the case.

[120] Noah Feldman, Threat to Kavanaugh Will Irrevocably Change Justices’ Lives, Bloomberg Law (June 10, 2022), https://www.bloomberg.com/opinion/articles/2022-06-10/kavanaugh-threat-will-change-supreme-court-justices-lives-irrevocably.

[121] Brian Fallon is “Sen. Chuck Schumer’s former communications chief.” Alexander Bolton, Progressive Group Ramps Up Pressure On Justice Breyer to Retire, The Hill (Apr. 9, 2021), https://thehill.com/regulation/court-battles/547355-progressive-group-ramps-up-pressure-on-justice-breyer-to-retire/; Editorial Board, Wall Street J. (Jan. 27, 2022), https://www.wsj.com/articles/stephen-breyers-loss-to-the-supreme-court-retirement-11643238845.

[122] Linda Greenhouse, Stephen Breyer Was the Right Justice for the Wrong Age, N.Y. Times (Jan. 26, 2022) https://www.nytimes.com/2022/01/26/opinion/breyer-supreme-court-retirement.html.

[123] For example, his statement in a 2000 case captured the essence of the disagreement over abortion. “We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.” These were the opening words of his majority opinion in Stenberg v. Carhart, 530 U.S. 914 (2000).

[124] Grutter v. Bollinger, 539 U.S. 306 (2003).

[125] Justice Ginsburg is often quoted as having said this. One time was reported at Samantha Lachman & Ashley Alman, Ruth Bader Ginsburg Reflects on a Polarizing Term One Month Out, HuffPost (Jul. 29, 2015) https://www.huffpost.com/entry/ruth-bader-ginsburg-tk_n_55b97c68e4b0b8499b18536b. See Lee Fisher, Monday Morning Message 9.9.19 First Monday. Last Friday, (Oct. 7, 2019), https://www.law.csuohio.edu/newsevents/news/monday-morning-message-9919-first-monday-last-friday-0.