How quickly a year, and a single Supreme Court term, can change things.
All of Democrats and the left’s worst fears about the makeup of the Court have come true in the last six years: Republicans blocking Merrick Garland from even having a Senate hearing; Donald Trump’s win in the 2016 election and the confirmation of Neil Gorsuch instead; the retirement of Anthony Kennedy and Brett Kavanaugh as his replacement; and finally, the extremely inopportune death of Ruth Bader Ginsburg just weeks before the 2020 election, and her rapid replacement with Amy Coney Barrett.
And over the past several weeks, as the Court has handed down one opinion after another, the consequences of the new right-wing supermajority have become very, very real: The death of the national right to have an abortion, the effective end to the executive branch’s ability to fight climate change, the hamstringing of state efforts to regulate guns, an erosion of the separation of church and state and tribal sovereignty, Miranda rights turning into Miranda privileges, and more.
And if the cases the Court has already chosen to take up next year are any indication, it’s not getting better anytime soon. But first, let’s assess the damage.
Almost from the time the Roe v. Wade decision was handed down in 1973, religious conservatives have slowly but steadily ground away at the protections afforded by the decision, by increasingly limiting access to abortions. They’d been successful at dramatically weakening the right—in cases like Planned Parenthood v. Casey—but on Friday, the 6-3 conservative majority killed the whole thing.
Writing for the 6-3 majority in Dobbs v. Jackson Women’s Health Organization, in an opinion effectively identical to the draft that leaked in May, Justice Samuel Alito wrote that the Constitution “does not confer a right to abortion,” and that “the authority to regulate abortion must be returned to the people and their elected representatives.”
The decision threw abortion rights in America into pure chaos. Several states had pre-existing bans they argued were now back in effect, while more than a dozen had banned abortion in recent years in preparation for the day Roe was overturned. Numerous states, including Texas and Louisiana, have seen bans blocked temporarily by courts.
The Dobbs decision could also portend the Court trampling over more rights. In a solo concurrence to the decision, Justice Clarence Thomas also fired a warning shot at other cases decided on the basis of “substantive due process” found in the 14th Amendment, as Roe once was: Griswold v. Connecticut, which guaranteed the right to use contraceptives without state interference; Lawrence v. Texas, which overturned homophobic anti-sodomy laws; and Obergefell v. Hodges, which made same-sex marriage legal nationwide.
Ken Paxton, the hard-right Texas attorney general, has already said he is “certainly willing and able” to defend the state’s sodomy ban, which was never formally removed from Texas law.
Oh, and about that “people’s elected representatives” thing: The Court announced Thursday that it’s taking up a case from North Carolina in its next term that would make state legislatures the sole authority on federal election laws, superseding the authority of state courts (and thus state constitutions). Such a ruling would harken back to Jim Crow, and would mean that pretty soon, it might not even matter how hard you vote.
While the Supreme Court believes that “the people’s elected representatives” are the only body to be trusted with women’s health choices, the same apparently does not apply to guns.
In the 6-3 New York State Rifle and Pistol Association v. Bruen decision, Thomas wrote that New York’s concealed carry law, which has existed for more than a century, violates both the Second and 14th Amendments by “preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”
The decision came down on the same day that the Senate passed a bipartisan gun safety bill, the first time it had done so in decades—in response to mass shootings in Uvalde, Texas and, yes, Buffalo, New York. Now-retired Justice Stephen Breyer noted as much in his dissent: “Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents.”
In response to the ruling, the Democratic-controlled New York state legislature, backed by Gov. Kathy Hochul, is preparing a ban on carrying concealed weapons in government buildings, playgrounds, public transit, and more.
In West Virginia v. Environmental Protection Agency, handed down on the final day of the Court’s term, the majority struck down the Obama-era EPA’s Clean Power Plan, ruling that the only way the EPA can regulate greenhouse gases is with the explicit approval of Congress—effectively arguing that Congress is responsible for both making laws and directing exactly how they should be enforced.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Chief Justice John Roberts wrote in the opinion, joined by the five other conservatives.
“But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme…a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
On a practical level, little will change immediately — the Clean Power Plan was stayed by the Supreme Court and ultimately never even implemented, as Motherboard noted when the decision came down Thursday. But this means that to specifically target climate change, Congress would have to specifically pass a plan to regulate greenhouse gas emissions, something it’s never done–and probably never will do, so long as the filibuster exists and coal shill Sen. Joe Manchin is key to the Democratic Senate majority.
In her dissent, Justice Elana Kagan noted the absurdity of the decision. “The subject matter of the regulation here makes the Court’s intervention all the more troubling,” Kagan wrote, joined by liberal Justices Sonia Sotomayor and Breyer. “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
“Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”
Separation of church and state
The Court decided two cases in the last few weeks that continue the top its crusade of tearing down the very clear Constitutional barriers between the state and religion in the name of religious freedom.
In Carson v. Makin, the conservative majority struck down a decades-old Maine law prohibiting public funding for “sectarian” schools. In Maine, the most rural state in the country, some communities have no public secondary schools, and so they were able to choose between sending their children to private, “nonsectarian” schools or a public school in another community.
But in a 6-3 decision, the Court said that this law was a violation of the First Amendment. (The schools in question, by the way, are openly discriminatory towards LGBTQ people.)
And in Kennedy v. Bremerton School District, a school prayer case handed down earlier this week, the Court found that the government could not prohibit a high school assistant football coach in Washington from publicly praying at the 50 yard line.
The coach, Joseph Kennedy, was placed on paid leave after several warnings and attempts from the school to find a solution respecting his religious freedom as well as the district from a lawsuit. Ultimately, his contract was not renewed. The school’s principal later testified in court that a parent complained that their son “felt compelled to participate” because if he didn’t, “he felt he wouldn’t get to play as much.”
The Supreme Court couldn’t even agree on the facts of this case. Justice Neil Gorsuch wrote that the coach “lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks,” while in her dissenting opinion, Justice Sonia Sotomayor said that “misconstrues the facts.”
“The court ignores this history [of the case],” Sotomayor wrote. “The court also ignores the severe disruption to school events caused by Kennedy’s conduct.”
Rights of criminal defendants
If you’ve ever been arrested or even watched a cop show, you likely know what Miranda rights are. Miranda v. Arizona, a case decided in 1966, required police to inform arrestees of their rights to counsel and to not self-incriminate (“You have a right to remain silent,” etc).
The ruling in Vega v. Tekoh, handed down last week, does not completely eliminate Miranda rights. But one of the only ways that a defendant who’s been deprived of this right can enforce it is by suing a police officer, and in Vega v. Tekoh, the Court—led by Alito—found that “a violation of Miranda is not itself a violation of the Fifth Amendment,” and that “we see no justification for expanding Miranda to confer a right to sue”—effectively restricting the potential consequences for a cop who violates a defendant’s civil rights.
“Sometimes, as a result [of a statement obtained without informing the defendant of their rights], a defendant will be wrongly convicted and spend years in prison,” Kagan wrote in her dissent. “He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered?”
It gets worse. In another case decided in May, Shinn v. Martinez Ramirez, a 6-3 majority led by Thomas ruled that federal courts can’t order evidentiary hearings on whether a convicted defendant had ineffective counsel if those claims of ineffective counsel weren’t first raised during the state criminal proceedings.
This effectively means that the Supreme Court believes at least some form of wrongful convictions are OK now. At the very least, if you’re wrongfully convicted because your lawyer is bad, you better figure that out while your case is in the state courts. In her dissent, Sotomayor called the decision “perverse” and “illogical,” and said the decision “makes illusory the protections of the Sixth Amendment.”
“Many, if not most, individuals in this position will have no recourse and no opportunity for relief. The responsibility for this devastating outcome lies not with Congress, but with this Court.”
In 2020’s McGirt v. Oklahoma, the Supreme Court ruled that the state government could not prosecute a member of a federally-recognized tribe for crimes that occurred within the jurisdiction of that tribe’s reservation. In the process, the Court—led by Gorsuch, an ally of liberals on tribal rights cases—ruled that roughly half of Oklahoma is tribal land, including much of the city of Tulsa.
But Barrett’s elevation to the Supreme Court has tilted the balance of the Court, even on tribal cases, back to the conservatives. And this week, in Oklahoma v. Castro-Huerta, the Supreme Court narrowed the McGirt decision by holding that the state can, in fact, prosecute non-Native Americans for crimes allegedly committed on tribal land.
In his dissent, joined by the three liberals, Gorsuch blasted the decision, which was authored by Kavanaugh. “Now, at the bidding of Oklahoma’s executive branch, this Court…defies Congress’s statutes requiring tribal consent, offers its own consent in place of the Tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding,” Gorsuch wrote.
“One can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.”
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