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Petitions of the week

More warrantless searches, more abortion and more Second Amendment

This week we highlight petitions that ask the Supreme Court to consider, among other things, the level of suspicion required before the government can search electronic devices at the border, whether New York can require the Roman Catholic Diocese of Albany to cover abortion in its employee health care plan, and whether New Jersey’s ban on certain firearm magazines violates the Second or Fifth Amendments.

On Monday, a unanimous Supreme Court ruled in Caniglia v. Strom that a “community caretaking exception” to the Fourth Amendment’s warrant requirement did not justify police officers’ removal of firearms from the home of a man they believed was suicidal. Merchant v. Mayorkas tests the boundaries of another Fourth Amendment exception, which allows warrantless searches at the border. The challengers are a group of U.S. citizens whose smartphones and laptops were searched at the border while they were re-entering the United States from traveling abroad. Although the district court ruled that the government must have reasonable suspicion that a device contains digital contraband because of the privacy concerns of electronic searches, the U.S. Court of Appeals for the 1st Circuit reversed. The 1st Circuit upheld suspicion-less “basic” searches, and it authorized warrantless “advanced” searches with reasonable suspicion. In their petition, the challengers argue that the lower courts are split on how the Fourth Amendment applies to searches of electronic devices at the border.

In bigger news from Monday, the Supreme Court agreed to take up Dobbs v. Jackson Women’s Health Organization, a challenge to the constitutionality of a Mississippi law that bars nearly all abortions after the 15th week of pregnancy. In Roman Catholic Diocese of Albany v. Lacewell, the justices face a question of religious freedom with abortion at the center of the dispute. A New York regulation requires that employer health insurance plans cover abortions. An exception may apply for religious entities whose “purpose” is to promote religion and who “employ” and “serve” members of the religion, but not those with broader missions, such as serving the poor, or who serve people regardless of religion. The Roman Catholic Diocese of Albany, joined by parties from other religious groups, challenged the regulation as violating their right to religious freedom under the First Amendment. The New York state courts upheld the regulation. As the diocese asks the justices for review, they consider similar issues in the still-pending Fulton v. City of Philadelphia, involving religious freedom, adoption and same-sex parents.

In another of the Supreme Court’s major cases scheduled for next term, New York State Rifle & Pistol Association Inc. v. Corlett, the justices will consider whether a New York law violates the Second Amendment because it requires anyone who wants to carry a gun in the state to show a good reason for doing so. A new petition, Association of New Jersey Rifle & Pistol Clubs Inc. v. Grewal, brings a constitutional challenge to a New Jersey law before the justices. The law prohibits possession of firearm magazines capable of holding more than 10 rounds of ammunition and requires anyone who had previously acquired such a magazine to dispossess themselves, including by surrendering them to law enforcement. The petition argues that the ban on possession violates the Second Amendment, and that requiring citizens to dispossess themselves of magazines violates the Fifth Amendment’s takings clause.

These and other petitions of the week are below:

Roman Catholic Diocese of Albany v. Lacewell
Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.

Merchant v. Mayorkas
Issue: Whether the Fourth Amendment requires that searches of electronic devices at the U.S. border be conducted pursuant to a warrant based on probable cause, or at least pursuant to an officer’s determination of reasonable suspicion that the device contains digital contraband.

Association of New Jersey Rifle & Pistol Clubs Inc. v. Grewal
Issues: (1) Whether a blanket, retrospective and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the takings clause.

West Virginia v. Environmental Protection Agency
Issue: Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.

North American Coal Corp. v. Environmental Protection Agency
Issue: Whether 42 U.S.C. § 7411(d), which authorizes the Environmental Protection Agency to impose standards “for any existing source” based on limits “achievable through the application of the best system of emission reduction” that has been “adequately demonstrated,” grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.

Recommended Citation: Andrew Hamm, More warrantless searches, more abortion and more Second Amendment, SCOTUSblog (May. 21, 2021, 1:20 PM),