The 5 most significant hits to our legal system in 2021

After President Joe Biden took office on January 20, 2021, legal analysts expected “breaking” constitutional news to die down a bit. After all, former President Donald Trump punctured too many legal and constitutional boundaries to count, and with a supine Republican Party in Congress, the impacts will be felt for generations. But somewhat surprisingly, 2021 brought its own fair share of blockbuster legal news — much of it fallout from the Trump years.

Here are five highlights, in review.

1. The new 6-to-3 conservative majority on the U.S. Supreme Court refused to step in — even temporarily — to halt the execution of a blatantly unconstitutional state law. The Texas law, SB8, happens to be about abortion, which the court held is protected from government interference until the point of viability, around 24 weeks gestation, in a decades-old pair of mega-cases, Roe v. Wade and Planned Parenthood v. Casey. But from a legal standpoint, the subject matter of the Texas law is really beside the point.

According to its own website, the court is charged “with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” In this moment, SB8 violates the Constitution because it restricts abortions as early as six weeks. That remains true unless and until Roe and Casey are gutted, an event that’s entirely feasible come June 2022 when the court issues its decision in Dobbs v. Jackson Women’s Health Organization.

For now, what’s stunning is that this court thumbed its nose at its constitutional obligation to guard the Constitution, deeply damaging its reputation for ideological neutrality. Going forward into 2022, who knows what’s next on the arbitrary list of constitutional rights not worth protecting according to the unelected folks on the high court.

2. Of Congress’s 535 members, a whopping 147 — or 27 percent (all from the Republican Party) — voted to ignore and subvert the voting public’s choice for president of the United States in order to forcibly install their own pick. As with SB8, this event has little to do with the subject matter of their vote — to empower Donald Trump over the presidential election winner Joe Biden — and everything to do with upholding the American government’s constitutional structure itself. This Jan. 6 vote was to certify the election results and what Trump supporters stormed the United States Capitol in an attempt to stop. 

We are, after all, a government that hinges on the consent of the governed. That consent is registered at the ballot box. At this point, the record is clear that the Electoral College count of Jan. 6 was a valid reflection of voter choice, albeit disappointing to many. But that’s how democratic elections work. There are winners and losers, and it’s “we the people” who choose — not the powerful politicians.

The fact that Congress is riddled with Republicans who are willing to take power from the voters while gaslighting them with false claims of fraud is chilling — and bodes very poorly for the fate of our democracy.

3. For the first time in history, the criminal justice system is grappling with how to address a bloody Jan. 6 insurrection and attempted coup at the Capitol. Generally speaking, laws are oftentimes passed in hindsight as corrective measures to ensure that an unpredicted occurrence cannot happen again. In the wake of Watergate, for example, Congress passed a slew of transparency and accountability reforms that did not seem to warrant enactment until President Richard Nixon took unprecedented steps to abuse the office. Fast-forward to the carnage on Jan. 6. Arguably, existing criminal laws do not neatly fit the crimes committed in and leading up to the insurrection.

For the more than 700 individuals who have been swept into the criminal justice system for participating in the insurrection itself, charges have ranged from disorderly conduct to obstruction of an official proceeding, which is a federal crime that carries up to 20 years in prison. However, defendants have argued that, because of the unique nature of Congress’s role in certifying the Electoral College votes, that charge doesn’t apply to them. At least one federal judge has rejected those arguments, which include, for example, that the certification was not an “official proceeding” within the meaning of the criminal statute. But as lawyers say, this is an issue of “first impression” for which the courts have no clear precedent to go by.

But what could be a more official proceeding than certifying the election of the nation’s next president?

The looming question remaining is whether Attorney General Merrick Garland will take the unprecedented step of charging those within government who facilitated the insurrection, including possibly Trump himself, on theories of criminal wrongdoing that are — necessarily — novel and thus politically fraught, precisely because Jan. 6 was itself a novelty in American history.

4. The “rights” associated with civilian gun ownership morphed into a successful defense to legal accountability for the killing of two people and the maiming of a third. Kyle Rittenhouse was acquitted by a Wisconsin jury of charges arising from civil unrest following the police shooting of Jacob Blake, a Black man, on Aug. 25, 2020. The winning theory of self-defense was that the AR-15 semi-automatic weapon that 17-year-old Rittenhouse brought to the protest could’ve been turned against him in an altercation with protesters. So when those dust-ups happened, he was justified in turning his gun against others, even fatally.

Rittenhouse is now a folk hero for some on the right, including members of Congress, who even laud him for the violence. Yet, it’s the dead who paid the price for his recklessness. 

The nationwide legal question now becomes whether taking a gun to a protest will operate as immunity to future killings on a similar theory — i.e., that a gun owner’s use of a deadly weapon is necessary as self-defense against the possible use of that deadly weapon against the owner (who could have just left the gun at home in the first place).

5. The battle over voting rights, which has raged since this country’s inception, has shifted from who can cast a vote to which validly-cast votes will get counted. This is a huge deal. Between Jan. 1 and Dec. 7 of this year, over 440 bills containing voting restrictions were introduced in 49 states. So far, 19 states have passed 34 such laws. Although these numbers are alarming, efforts to constrain ballot access are not new. It’s why Congress in 1965 passed the historic Voting Rights Act, which the Supreme Court effectively dismantled in 2013, and which the languishing John Lewis Voting Rights Advancement Act bill aims to restore.

What is new are the steps being taken across the country to politicize the counting of votes, by replacing neutral election officials — such as secretaries of state — with partisan legislators and politicians tasked with the counting and certifying of election results. In the wake of the Big Lie, what we can expect in 2022 and beyond is the illegitimate canceling of citizens’ legitimate votes under the guise of election integrity and democracy.

Of course, whatever that is, it’s not democracy. Thus, the legal stakes for the country could not be higher in 2022. 

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle