WASHINGTON, D.C. — Monday morning at 10:00 a.m. the Supreme Court is expected to release orders in the three final cases on its docket, ending the term without Justice Antonin Scalia and highlighting the electoral stakes for November.
The three cases are:
Whole Woman’s Health v. Hellerstedt
This challenge to Texas’s HB2 law is the first Supreme Court abortion case since 2007. HB2 is a statute requiring abortion doctors to have admitting privileges at a hospital within 30 miles of the abortion clinic, and also for every abortion facility to meet the equipment and sanitation standards of an ambulatory surgical center. Argued by Texas Solicitor General Scott Keller — a rising conservative star in the law — HB2 was designed to meet the standard Justice Anthony Kennedy set forth in 1992 as the sort of abortion restriction that he is willing to sustain. (Keller is also a former law clerk of Kennedy’s, and former general counsel to Senator Ted Cruz.)
Conservative hopes that Hellerstedt would become a major pro-life victory were dashed with the death of the iconic Scalia; now pro-lifers hope they can salvage anything from the case. The U.S. Court of Appeals for the Fifth Circuit upheld this law, so in the event of a 4-4 tie, HB2 will survive, but without creating any national precedent.
Unfortunately for abortion opponents, after Scalia’s death, it is likely that the only way Hellerstedt could now be a major case would be if Kennedy votes with the four liberal justices to hold that HB2 imposes an “undue burden” on women seeking an abortion, which would suggest that even modest abortion restrictions would face an uphill battle at the High Court.
It is also possible that on Monday the Court will not hand down any decision in Hellerstedt. If currently tied at 4-4, instead of ending the case, the justices could vacate the parties’ submission of the case, and order it reargued during the Court’s next term (which begins in October) after a ninth justice is confirmed to break the tie.
Voisine v. United States
This is a gun-rights case, though one in which the Supreme Court refused to consider any argument over meaning of the Second Amendment. For many years, violent felons have been barred from owning guns. Since 1996, federal law expanded that prohibition to bar a person who has been convicted of a misdemeanor domestic-violence offense from gun ownership.
The issue in Voisine is whether a crime in which the criminal was merely reckless — not willfully or knowingly committing a crime — is sufficient to trigger this federal ban.
McDonnell v. United States
This is a challenge to the felony conviction under the Hobbs Act — which is the federal bribery statute — of former Virginia Governor Bob McDonnell (R). The case was argued by Supreme Court heavyweight Noel Francisco, a partner at Jones Day who formerly clerked for Scalia. McDonnell was convicted for violating the Hobbs Act, though it was acknowledged that he never used his gubernatorial power to benefit anyone giving him a gift. As Francisco’s legal brief explains, the question in McDonnell is whether “official acts” criminalized by the Hobbs Act are “limited to exercising actual government power, threatening to exercise such power, or pressuring others to exercise such power.”
McDonnell’s conviction under the Hobbs Act troubled many legal experts because it represented a very broad view of federal power to criminalize unseemly relationships and interactions — and possibly even completely innocent ones — when no quid pro quo was proven in which an officeholder used his power to reward his friends or benefactors.
These cases are expected to highlight the stakes for the country in the 2016 presidential contest between Donald Trump and Hillary Clinton.
Breitbart News will report on these cases once decisions and orders are handed down at the Court’s session, and will preview these cases on Breitbart News Daily on SiriusXM Patriot channel 125 Monday morning.
Listen to the discussion of this article on Breitbart News Daily on SiriusXM:
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.