These days, the Supreme Court is in the news as much for what it does not do as what it does do. On Tuesday, the Court did not hear an appeal to an abortion case, but did strike down a state restriction on the practice, yet not the whole law. They also did not intervene in a case involving transgender students, or comment why, leaving another lower court ruling in place. However, the Court did issue a decisive ruling in favor of law enforcement in a free speech case. The decisions may offer guidance to Court watchers as to what justices may do this term and next.
Justices declined to hear an appeal by the State of Indiana regarding an abortion law, signed by then-Governor Mike Pence, which had been struck down in its entirety by a lower court. They handed down a mixed result in doing so. A significant restriction, which would have banned women from having an abortion on the basis of the fetus’ race, gender, or diagnosis of Down Syndrome, was struck down, leaving the lower court’s ruling in place. However, they restored a separate rule, requiring the remains of aborted fetuses to be buried or cremated.
The Court also left in place another lower court ruling, in which a Pennsylvania school district allowed some transgender students to use locker rooms and restrooms matching their gender identity. The case had been brought on behalf of students who opposed the district’s policy, alleging sexual harassment in violation of Title IX. The lower court declined to issue a preliminary injunction blocking the policy, and the Supreme Court’s decision was issued without comment.
On a 7-2 vote, the Court ruled that if law enforcement has probable cause for an arrest, an individual cannot make a claim he was arrested in retaliation for exercising his free speech rights. The case concerns an Alaska man who attended the Arctic Man ski and snowboard festival in the Hoodoo Mountains, an event Chief Justice Roberts described as “10,000 mostly drunken people” in the middle of nowhere. The man was arrested for disorderly conduct, the charges were later dropped, but he sued anyway, claiming he was arrested for speaking out against the officers. Justices Ginsburg and Sotomayor dissented.
With abortion dominating the headlines recently, battle lines were clearly drawn in the Indiana case, at least by a pair of justices who figured the issue would be coming back soon. Justice Thomas invoked eugenics more than 60 times in his concurring opinion. Justice Ginsburg joined Justice Sotomayor, indicating she’d have struck down the entire law. Thomas and Ginsburg also traded shots at each other in corresponding footnotes. “Justice Ginsburg’s dissent from this holding makes little sense,” Thomas wrote. “Justice Thomas’ footnote . . . displays more heat than light,” Ginsburg wrote.
Tuesday’s rulings might have come as a disappointment to pro-life activists, hoping the Court’s new majority would take quick shots at Roe v. Wade. Instead, justices seemed unready, or unwilling to do so, at least for now. Despite a slew of state-level bans, it seems unlikely this Court will take up the issue again, at least until after the election.