It’s June, and you know what that means, it’s time once again for SCOTUS Watch.
June is when the Supreme Court issues its most controversial decisions, only because the Roberts Court has adopted the disreputable practice of treating the Supreme Court like it’s a reality TV show, each term must end with a cliffhanger ending for next season.
We’ve already had a leaked “spoiler alert” about the abortion decision, which no one really saw as a surprise. This is what this radical Republican court was built to do.
But not all of this court’s bad decisions will come in June. A number have already been announced. Here are just a few, which are cause for real dread in the month of June.
John Skolnik at Salon writes, 5 Supreme Court decisions from this term that are terrifyingly radical — and not about abortion:
[R]ecently, Americans saw this spirit of partisanship carry over into the court’s actual jurisprudence, when Politico reported on a leaked draft majority opinion revealing that the court had already informally voted to overturn Roe, effectively turning back the clock on reproductive rights by half a century. But while Roe’s reversal will be incredibly consequential, the court has also handed down a number of separate decisions that similarly reek of political bias:
Ohio v. Occupational Safety and Health Administration
Last November, President Biden rolled out one of his most consequential COVID-19 policies to date, mandating that all private businesses with over 100 employees require their workforce to get vaccinated or undergo routine testing. The policy was set to be implemented by the Department of Labor’s Occupational Safety and Health Administration (OSHA) on the basis that COVID poses a unique workplace hazard. At the time, scientists and public health experts overwhelmingly backed the mandate, in large part because the data has shown that mandates are effective.
However, by last December, numerous businesses and trade groups, including National Federation of Independent Business, an association of small business owners, had filed emergency applications for the policy to be scrutinized by the Supreme Court. The following month, in a 6-3 opinion, the court shot Biden’s mandate down, calling it a “blunt instrument.” The mandate, the court wrote, “draws no distinctions based on industry or risk of exposure to Covid-19” and is “a significant encroachment into the lives – and health – of a vast number of employees.”
Alabama Association of Realtors v. Department of Health and Human Services
In March 2020, at the height of the pandemic, the Centers for Disease Control announced that the federal government would be imposing an eviction moratorium in order prevent the spread of COVID and support millions of Americans who lost their jobs as a result of the crisis. The policy, according to Duke researchers, reduced the pandemic death rate by 11% and was extended by the Biden administration as the crisis dragged on.
But in August, facing a clarion call from real estate interests, the Supreme Court rejected the CDC’s moratorium, putting millions of Americans with unpaid rent at risk of being evicted. The court’s decision, much to the contempt of many, was handed down via shadow docket, where judges can deliver unsigned rulings without jumping through the traditional hoops of argumentation and deliberation.
RELATED: Millions at risk after Supreme Court overturns eviction ban in latest “shadow docket” ruling
Federal Election Commission v. Ted Cruz for Senate
In 2018, Sen. Ted Cruz, R-Tex., lent his own re-election campaign “Ted Cruz for Senate” $260,000 on the day before his general election in order to spur a challenge to provision within campaign finance law. The 20-year provision, Section 304 of the Bipartisan Campaign Reform Act, bars lawmakers like Cruz from raising any more than $250,000 after Election Day for the purposes of repaying pre-election loans that they gave themselves during their campaign.
After Cruz filed a lawsuit challenging Section 304, the Supreme Court ruled this month that the cap violated the First Amendment and “burdens core political speech without proper justification.” Justice Elena Kagan, one of the court’s three dissenters, expressed concerns that the law’s rescission might allow problematic back-scratching, largely because lawmakers could have donors pay off their campaign loans in exchange for political favors.
“The politician is happy; the donors are happy. The only loser is the public,” Kagan wrote. “It inevitably suffers from government corruption.”
United States v. Vaello-Madero
In 1972, Congress passed the Supplemental Security Income (SSI) to supply people who are disabled, or low-income, or above the age of 65 with government-subsidized income. The program was designed to be eligible for residents living in all fifty states, including the U.S. commonwealth of the Northern Mariana Islands, and was never officially extended to residents of Puerto Rico, a U.S. territory.
In 2016, Jose Luis Vaello-Madero, a Puerto Rico-born man who lived in New York for several decades, filed a lawsuit after his social security checks were discontinued when he decided to move back to Puerto Rico to care for his wife. A district court ruled in his favor, arguing that the exclusion of Puerto Rico from SSI contravenes the equal protection clause of the 14th Amendment. However, the case was appealed to the Supreme Court, which ultimately ruled 8-1 against Vaello-Madero.
“In devising tax and benefits programs, it is reasonable for Congress to take account of the general balance of benefits to and burdens on the residents of Puerto Rico,” Supreme Court Justice Kavanaugh wrote, noting that the territory’s citizens are generally not required to pay taxes.
The Government Accountability Office estimates that more than 300,000 Puerto Ricans would have been eligible for the program.
Shinn v. Martinez Ramirez
Back in December, the Supreme Court gathered for oral arguments around a case involving Barry Jones, who currently awaits his sentence on death row for the alleged rape and murder of girlfriend’s four-year-old daughter. In 2018, Jones’ conviction was overturned after a federal court found that he was not givensufficient legal representation in violation of the defendant’s Sixth Amendment rights. The judge ruled that “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”
However, [last] Monday, the Supreme Court decided that state prisoners have no constitutional right to bring new evidence to court indicating that they were not provided with ample counsel. Supreme Court Justice Clarence Thomas said such a right “encourages prisoners to sandbag state courts.”
Christina Swarns, executive director of the Innocence Project, told NPR that “the opinion leaves innocent people in the nightmarish position of having no court to go to for justice.”
Preliminary Schedule (subject to change) h/t SCOTUSblog. More opinion dates may be added, usually on a Thursday.
The “major” cases yet to be decided are: Whole Woman’s Health v. Jackson (Texas abortion case); Dobbs v. Jackson Women’s Health Organization (Mississippi abortion case) – these two cases are likely to be consolidated under one opinion; New York State Rifle & Pistol Association Inc. v. Bruen (concealed carry of firearms case); Carson v. Makin (state funding of religious schools case); National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (OSHA rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine case); Biden v. Missouri (HHS regulation requiring facilities that participate in Medicare and Medicaid to ensure that their employees are vaccinated against COVID–19 case); West Virginia v. Environmental Protection Agency (EPA rules to decarbonize the economy case); Kennedy v. Bremerton School District (the insubordinate praying coach case); Biden v. Texas (DHS termination of Remain in Mexico Policy – Migrant Protection Protocols case).
Emily Clark summarizes, Supreme Court decisions we’re watching for in June 2022:
Here are the cases we’ll be watching:
Abortion Rights
Dobbs v. Jackson Women’s Health Organization
This case will decide whether Mississippi’s law banning nearly all abortions after 15 weeks’ is unconstitutional. If SCOTUS sides with Mississippi, they will overturn 50 years of precedent established by Roe v. Wade and trigger abortion bans across the nation. The courts have sided with abortion justice in the past, but now that SCOTUS has a conservative majority, our reproductive rights are being stolen from us.
Voting Rights
Berger v. North Carolina State Conference of the NAACP
This case began when the North Carolina NAACP chapter filed a suit challenging the state’s voter-ID law, arguing the law violates the Constitution and the federal Voting Rights Act. Even though North Carolina Attorney General Josh Stein, a Democrat, has defended the voter-ID law while representing the state, Republican state legislators Phil Berger and Tim Moore want to intervene to defend the law on the basis of “inadequate representation.” Courts denied their request since their opinion does not differ from that of the AG.
This case calls into question the power of the legislative branch. Allowing state legislators to intervene in cases simply for disagreeing with the tactics employed by the state would clutter and prolong litigation and expand the power of the legislative branch beyond its own jurisdiction, infringing upon a separation of powers
Immigration
In this case, the court will determine whether the Biden administration is required to maintain Trump-era Migrant Protection Protocols, which force asylum-seekers to wait in Mexico while their cases are decided. Between 2019 and 2021, Human Rights First recorded over 1,500 cases of rapes, killings, and kidnappings of the migrants sent to wait in Mexico.
The Department of Homeland Security tried to end the “remain in Mexico” policy last year, citing its lack of effectiveness and long-term viability. This case is important because it will further define the limits of authority by presidents to change policies instituted by previous administrations. The ruling would also establish limits on presidential power regarding immigration policy.
In 2018, Border Patrol agent Erik Egbert stopped U.S. citizen Robert Boule, searched his car, and asked him questions about his inn on the U.S.-Canada border. Later, when Boule was greeting a guest from Turkey, Egbert returned and demanded to search his vehicle again. When Boule refused and requested a warrant, Egbert responded by shoving Boule against the car and throwing him to the ground.
This ruling will decide whether people have a right to sue federal officers when their First and Fourth amendment rights are violated. If the Court rules in favor of Egbert, it will be exponentially more difficult to hold law enforcement accountable for their actions.
Garland v. Gonzalez & Johnson v. Arteaga-Martinez
This case will determine whether asylum-seekers are entitled to bond hearings after six months of detention. Individuals are often held in detention centers for weeks, months, and even years at a time while they wait for a decision on their case, clearly violating their right to due process.
If the court rules in favor of asylum-seekers, after six months of detention, migrants will have the option to be released on bond unless they are deemed a flight risk or a danger to the community.
Education / Separation of Church and State
The ruling in this case will determine whether states can use taxpayer dollars to sponsor non-public, religious schools. Gov. Greg Abbott and other GOP state governors have expressed interest in extending school vouchers to private schools should the Court allow it. Diverting funding away from public schools will only exacerbate an already dire public education crisis, forcing more teachers out of the field due to low pay and lack of resources.
Kennedy v. Bremerton School District
For decades, the Establishment Clause of the First Amendment has prohibited public schools from promoting religious beliefs or organizing, encouraging, or leading prayer among students. These prohibitions are often violated, like in the case of high school football coach Joseph Kennedy, who led team prayers before and after games for years before his school district caught wind and requested him to cease.
Though Kennedy was offered “various accommodations that would have allowed him to pray without religiously coercing students,” he continued to lead team prayers, citing the request by the district violated his First Amendment rights. While challenges to religious prohibitions in schools aren’t unprecedented, if the court rules in favor of Kennedy, this case could blur the lines between church and state.
Gun Reform
New York State Rifle & Pistol Association Inc. v. Bruen
This case will decide whether New York’s law limiting concealed-carry licenses to those demonstrating a special need for self-defense violates the Second Amendment. The suit came after New York residents Robert Nash and Brandon Koch applied for gun licenses, but were only permitted licenses for hunting and target shooting, not for concealed carry in public spaces.
The two felt this violated their Second Amendment rights even though the law was created in the interest of the public’s safety.
We’ve seen gun violence consume our nation, leaving nothing but devastation, trauma, and tragedy in its wake. Americans deserve to learn and live without fear, and New York’s law is a step toward that. If the Court rules in favor gun lobbyists, our nation’s gun violence crisis will only intensify.
Criminal Justice
In 2010, Congress passed the Fair Sentencing Act to reduce the sentencing disparity between crack and powder cocaine. In 2018, they passed the First Step Act to make the reforms of the Fair Sentencing Act retroactive (meaning the law would apply to past offenses, not only new ones).
After both laws were passed, Carlos Concepcion, previously sentenced to 19 years in prison for possession of crack cocaine, requested a resentencing. The lower courts denied his request. If SCOTUS rules against Concepcion, they could be setting a precedent for continued racial discrimination in drug-related cases and perpetuate incongruent sentencing through the use of outdated laws.
This case will determine whether a person can sue a police officer for using statements in court that were obtained prior to a Miranda warning. The Fifth Amendment protects us against self-incrimination and requires officers to explain these rights to us prior to obtaining a statement.
While at work, Terence Tekoh was accused of sexual assault and officer Carlos Vega was brought in to question him. Vega failed to explain Tekoh’s rights before doing so and coerced a confession out of him. If law enforcement officers aren’t held accountable for denying people their rights, such practices will only continue.
The Eighth Amendment ban on cruel and unusual punishment is vital in protecting our human rights and maintaining a healthy democracy. We know capital punishment in and of itself is cruel and unusual, denies people due process of law, violates the constitutional guarantee of equal protection, and is not a viable form of crime control.
Michael Nance was sentenced to death in 1997 for robbing a bank and killing a person while fleeing and, in waiting out the sentence, has developed health conditions that would make execution by lethal injection cruel and unusual. Nance filed a request that his method of execution be changed to firing squad, but, since that method is not currently used in Georgia, courts have denied his request thus far.
This case will decide whether a death-row prisoner can challenge a state’s proposed method of execution when the alternative method of execution is not presently authorized under state law. If SCOTUS rules against Nance, they will open the door for forms of cruelty that the Constitution was designed to prevent.
Environment
West Virginia v. Environmental Protection Agency
In this case, the Court will decide whether the Environmental Protection Agency (EPA), under the Clean Air Act, has the authority to broadly regulate greenhouse gas emissions. Republican attorneys general are arguing that such power should be delegated to Congress, not a knowledgeable, bureaucratic agency such as the EPA. Given the rapid acceleration of climate change, shifting this authority to Congress (which is an already slow-moving branch of government) could have devastating effects on our planet.
Axios reported last week, Poll: Majority of Americans disapprove of Supreme Court after Roe v. Wade leak: The Marquette Law School national survey found that 55% of Americans disapprove of “how the Court is handling its job” while 44% approve. There is a partisan divide as bad as the court itself is divided. 68% of Republicans approved of the court, up from 64% in March. But only 26% of Democrats approve of the court compared to 49% in March.
By July 4th, Supreme Court disapproval could plummet to the low disapproval rating the public has for Congress.
Jennifer Rubn writes, “Stare decisis is essential to social stability. The court doesn’t care.”, https://www.washingtonpost.com/opinions/2022/05/05/roe-stare-decisis-reliances/
In its arrogance and in its isolation from everyday life in America, the right-wing radical majority on the Supreme Court seems prepared to blithely sweep away 50 years of legal history and, with it, the monumental changes in women’s lives since the 1970s.
Stare decisis, or the legal principle of adhering to precedent, is not simply a theoretical restraint on the court that should prevent a single batch of justices (or one or two decisive ones) from willy-nilly upsetting the law to suit their political minders. Stare decisis is essential to 330 million Americans who have planned their lives with the assumption that half a century of law won’t disappear overnight.
[It] might be news to the gang of six sitting in their marble building, but there have been dramatic changes in the lives of women since Roe v. Wade guaranteed the right to abortion — changes that allowed women to enter the military anywhere in the country, certain that their access to essential care would not depend on the state they were stationed in. If they knew they might have to hunker down in blue states, would they have joined the military? Stayed in the military?
Women have relied in hundreds of ways on a right to privacy that was not contingent on their state of residency. They chose colleges, took jobs, opened businesses, and planned marriages and pregnancies based on many factors — but might they have chosen differently if the possibility of getting stuck in a state that criminalized abortion was a factor, too?
Lives will now be disrupted. People might need to quit jobs, transfer colleges, relocate their businesses or physically move because the Supreme Court, with a stroke of a pen, tells them they were foolish to rely on a legal and social framework that, in many cases, pre-dated their birth — a framework they were told was “settled law.”
[T]he ordering of one’s life based on the assumed stability of the law is what stare decisis is meant to provide. But the Supreme Court majority either does not understand or does not care about how much havoc it will wreak on women, their families, the military, businesses and schools. Its religion-driven tyranny will disrupt lives and induce utter contempt from millions whose very existences will need rearranging.
Who knew Americans would have to plan their lives around whether Sen. Mitch McConnell (R-Ky.) could steal a seat or two on the court? Blowback? The court has no idea what is coming if Roe vanishes.