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The First Monday in October; Consequences to Come

Updated: Oct 5, 2021


October 4 was the 1st Monday in October, the day the new conservative dominated Supreme Court begins its new term.


Why the 1st Monday? An act of Congress set the day . . . well . . . sort of. The Judiciary Act of 1979 originally set two yearly sessions for the highest court in the land—the Court met in February and August. As time went by, the Court transitioned into one annual term, which, in 1827, began on the first month in January. In 1844, the date changed to the first Monday in December and changed again, to the second Monday in October in 1873.


When did the term first begin on the 1st Monday in October? That happened in 1917, apparently to expand the number petitions. 28 U.S.C. § 2 sets the date:


“The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.”


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Many Americans do not believe in the power of the vote. Turnout for our presidential elections has been in the 50% range for most of the 21stCentury, that is, until the 2020 election. In 2020, 66.5% of eligible voters turned out, the highest voter turnout percentage since 1900.


I’ve often written that if America voted, in record numbers, in every election, we’d never see a Republican president. A one-term Republican president was defeated in the 2020 election, but not before leaving an historic mark on our judiciary. 17 million less people voted in 2016 when Donald Trump lost the popular vote, but won the electoral college and the presidency.


Why the history lesson on the Supreme Court and the presidential election? Because this one-term president, Trump, whose policies, political ideology, and attitude were abhorrent to much of the population, found himself uniquely positioned to appoint three new Supreme Court Justices. His choices created a 6-3 conservative majority on the high court.


For those who sat on the sidelines in 2016, saying “I can’t vote for Hillary,” or those so-called “Reagan Democrats” who voted for Trump, but did not support the Republican agenda, a pox on all your houses.


Roe v. Wade

How many of you are Roe v. Wade supporters? Your anti-Hillary or stay-on-the-sidelines behavior may haunt you for the rest of your lives. Starting today, the controversial and divisive four-year reign of terror known as the Trump administration will begin to cause even more pain. And the pain may be felt for many years to come.


Today, the United States Supreme Court, with its six Republican appointees, begins to flex its muscle.


Among the cases the Court will review: A challenge to Roe v. Wade. At issue this session is a Mississippi law that bars most abortions at five weeks. Think about that: Many women have not even had a positive pregnancy test at five weeks. Can there be fetal viability at five weeks? What about exceptions for rape or incest?


We have already experienced an early test of this Court’s ideology, when it rejected a plea to prevent Texas from implementing its own Mississippi-style abortion law. You remember this law, don’t you? It bans most abortions after six weeks and enlists ordinary citizens to become bounty-hunters for those who violate it. The Court also broke foul political wind when it rejected President Biden’s policies on asylum and eviction.


Guns

Don’t care about abortion, asylum, or eviction, one way or the other? How about guns? On April 26, 2021, the Roberts Court agreed to hear a challenge to New York State’s concealed carry laws. The case seeks to overturn a requirement that someone seeking a concealed carry license must demonstrate a compelling need to carry a gun in public. A ruling in the case could affect similar laws in six other states. Can states and municipalities regulate or control guns in this manner?


It is not unusual for a state to require a license to carry. But New York sets a much higher bar—an applicant must demonstrate “proper cause,” a term which a state appeals court defined as a heightened need for self-protection in the community or the workplace.


In the case at bar, a citizen was granted a concealed gun permit for hunting. He sought to expand the license following a rash of robberies in his neighborhood. The state supreme court denied the expansion because the man could not demonstrate a “special need” for self-defense. He sued to overturn the “proper cause” requirement, stating that it violates his 2nd and 14th Amendment rights.


The New York affiliate of the NRA and other similarly situated citizens have joined in the litigation as co-plaintiffs. The basic difference between current law and this attempted expansion is whether concealed carry for self-protection will expand out of the home and into the streets. Does the 2nd Amendment protect the right to concealed carry for self-defense outside the home? I don’t know about you, but it sounds like a return to the wild, wild west to me. Who needs cops?


For me, like vaccine mandates and public safety, the government does, indeed, have the power to regulate guns, especially in public. I have never believed that the 2nd Amendment intended anything more than a right to take up arms against an oppressive government. Obviously, conservatives have long disagreed with this interpretation, and they now have a 6-3 majority. Wyatt Earp, Doc Holliday, and the Clanton-McLaury gang on Broadway? It is, indeed, scary stuff.


Religion

Don’t care about abortion or gun control either? How about the separation of church and state? In this 1st Amendment challenge, two families in Maine sought funding from the state to send their kids to private schools that offer religious teaching. A Maine law requires a school to be “nonsectarian.” The families sued the state, arguing that the law violates the 1st Amendment. The Supreme Court took up the case. Only the continued viability of our public schools, which most students in this country attend, is at stake.


The Death Penalty

Does the name Dzhokhar Tsarnaev mean anything to you? He’s the younger of two Boston Marathon bombers who killed three and injured hundreds more in the highly publicized 2013 incident. Tsarnaev was convicted and sentenced to death, but a federal appeals court dismissed the sentence, stating that the presiding judge failed to protect him from jury bias. The judge questioned whether Tsarnaev received a fair trial pursuant to the 6th Amendment. The Trump Justice Department, in one of its final acts, decided to restart federal execution, after a 17-year hiatus. As part of this restart, the Department invited the Supreme Court to reinstate Tsarnaev’s death penalty.


While few Americans care whether this young man receives the death penalty for his despicable acts, a decision in this case could have far-reaching effects. Anti-death penalty advocates may rue the day they sat on the sidelines and permitted Donald Trump to become POTUS.


Torture

Finally, the Court will determine whether the federal government may claim “state secrets” in a torture case. In the case, a terrorist suspect, subjected to “enhanced interrogation techniques” by the CIA, seeks the release of materials relating to his torture. The government claims a “state secrets privilege” and refused to release subpoenaed documents claiming a risk to national security. Will the Court support the release or the privilege?


As you can see, these are important issues for the 2021 term. Chief Justice John Roberts, the Court’s so called “ideological center,” has his work cut out for him. Once the swing vote; Roberts now has five Justices to his right on a Court that, according to recent polls, has lost the respect of the public, especially following Bush v Gore, Trump’s public declaration that he would appoint justices to overturn Roe v. Wade and protect the 2nd Amendment, and the way Senate Republicans handled the Merrick Garland and Amy Coney Barrett appointments.


Sorry you stayed on the sidelines or voted the way you did in 2016? You may soon suffer the very long-term consequences of your decision. What will happen when the new Supreme Court takes its 6-3 conservative majority out for a spin? We will soon find out, beginning with arguments and judicial questions commencing the first Monday in October.

Mark M. Bello, a trial lawyer, is the author of “Betrayal at the Border" and other ‘ripped from the headlines’ Zachary Blake Social Justice Legal Thrillers available on Amazon.com and other online booksellers. For more information, please visit www.markmbello.com. Mark also is co-host of the new podcast, Justice Counts, now streaming.

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