SCOTUS Watch: Final Decisions In June

Wow, it’s June already! And you know what that means: SCOTUS Watch.

June is the last month of the Supreme Court’s term, and the Roberts Court has developed a reputation for cliffhanger endings to its most controversial cases, as if it is a reality TV show.

We are about to find out just how radical this 6-3 “conservative” Trump-skewed Supreme Court is with Justices Gorsuch, Kavanaugh and Barrett joining Thomas, Alito and Roberts.

One thing has become clear: Chief Justice John Roberts no longer is in control of his court. He has joined the three “liberals” on the court, Breyer, Sotomayor and Kagan, on the short-end of  5-4 decisions, albeit infrequently.

Some court observers argue that John Roberts has moved to a “swing vote,” replacing former Justice Antony Kennedy in this role. Other court observers argue that Roberts is concerned about the “legacy” of the court he leads. I don’t accept that. The Roberts Court’s “legacy” is a mixed bag, with some major civil rights advances, while at the same time, major voting rights retrenchment. And always in favor of the corporatocracy.

On Tuesday, because of the Memorial Day holiday, the Court ruled unanimously in two cases.

In Garland v. Dai soundly rejected the 9th Circuit’s treatment of testimony from asylum seekers as credible as long as the immigration agency had not made a finding to the contrary. Justices unanimously rule against asylum seekers on question of credibility.

In its first major opinion on the scope of American Indian tribes’ sovereign powers in decades, the Court in United States v. Cooley ruled against a criminal defendant who argued that a tribal police officer on the Crow reservation lacked the power to detain him. Court unanimously holds that Indian tribes can police non-Indians.

The next four Mondays in June are likely to be more divisive. Reviewing the 24 argued cases still pending an opinion, there are five major opinions observers are watching. Reuters reports, Major rulings including Obamacare loom for U.S. Supreme Court:

The U.S. Supreme Court heads into the last month of its current term with several major cases yet to be decided including a Republican bid to invalidate the Obamacare healthcare law, a dispute involving LGBT and religious rights and another focused on voting restrictions.

The court, which has a 6-3 conservative majority, now has 24 cases in total left to decide after issuing two rulings on Tuesday. There also is speculation about the potential retirement of its oldest justice, Stephen Breyer. Some liberal activists have urged Breyer, who is 82 and has served on the court since 1994, to step down so President Joe Biden can appoint a younger liberal jurist to a lifetime post on the court.

The court’s nine-month term starts in October and generally concludes by the end of June, though last year it continued into July because of delays caused by the COVID-19 pandemic.

[R]epublican-governed states have asked the court to strike down the Affordable Care Act, a law signed in 2010 by Democratic former President Barack Obama that has helped expand healthcare access in the United States even as Republicans call it a government overreach.

It appears unlikely based on November’s oral arguments that the court would take such a drastic step. But if the Obamacare law were to be struck down, up to 20 million Americans could lose their medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public healthcare programs and created marketplaces for private insurance.

Another major case yet to be decided is one that pits religious rights against LGBT rights as the justices weigh Philadelphia’s refusal to let a Catholic Church-affiliated group participate in the city’s foster care program because it would not accept same-sex couples as prospective foster parents.

The conservative justices appeared during the November arguments in the case to be sympathetic toward the Catholic group’s claim that its religious rights under the U.S. Constitution’s First Amendment had been violated. The court’s conservative majority has taken an expansive view of religious rights and has spearheaded several rulings backing churches in challenges to COVID-19 pandemic-related restrictions.

With various states enacting new Republican-backed voting restrictions in the aftermath of former President Donald Trump’s false claims that the 2020 election was stolen from him through widespread voting fraud, the court is preparing to rule in a case concerning Arizona voting limits.

Republican proponents of Arizona’s restrictions cite the need to combat [nonexistent] voting fraud. A ruling upholding the restrictions could further undermine the Voting Rights Act, a landmark 1965 federal law that prohibits racial discrimination in voting.

The court also is getting ready to decide a closely watched case involving the free speech rights of public school students. It involves whether a high school that punished a cheerleader for a foul-mouthed social media post made off campus on a weekend violated her free speech rights under the First Amendment.

More ominous, the court has taken up major cases on gun and abortion rights for its next term, which begins the first Monday in October.

More about that Arizona case seeking to further undermine the Voting Rights Act which bears Arizona Attorney General Mark Brnovich’s name, from CNN. Supreme Court ruling in Arizona case will be another front in the voting rights wars:

The battle lines have been drawn in the voting rights wars as several Republican-led states consider ever restrictive laws and Democrats fight a frantic battle in courts to combat what President Joe Biden has called an “assault on democracy.”

Now, within the next few weeks, the Supreme Court will enter the melee and weigh in on the scope of the Voting Rights Act in a way that could bolster efforts by Republicans in states like Georgia and Texas to limit access to the polls.

It could also force the hand of Senators Joe Manchin and Kyrsten Sinema to give up their ridiculously indefensible positions on the Senate filibuster rule in a “break glass” moment to rescue the Voting Rights Act, and American democracy itself, in order to pass H.R. 1/ S. 1 the For The People Act and H.R. 4, the John Lewis Voting Rights Advancement Act.

The decision will come down in the last turbulent weeks of the court’s term, and supporters of voting rights fear the new conservative 6-3 majority will pick up where the court left off eight years ago and gut another provision of the historic law.

It’s the first time the justices have considered the scope of the Voting Rights Act as it applies to the denial of the vote since Chief Justice John Roberts wrote a 5-4 opinion in 2013 effectively invalidating Section 5 of the law. That section required states with a history of discrimination to obtain federal approval before making any changes to their voting laws.

“Our country has changed, “ Roberts wrote for the majority.

Has it Johnny? This was a malicious lie from the man who spent his entire legal career working to destroy the Voting Rights Act. He green lighted a wave of new voting restrictions. After Ruling, States Rush to Enact Voting Laws:

Within hours, Texas officials said that they would begin enforcing a strict photo identification requirement for voters, which had been blocked by a federal court on the ground that it would disproportionately affect black and Hispanic voters. In Mississippi and Alabama, which had passed their own voter identification laws but had not received federal approval for them, state officials said that they were moving to begin enforcing the laws.

Since the decision in Shelby County v. Holder, states have moved forward with new laws, an effort further fueled by former President Donald Trump’s unfounded claims of widespread voter fraud in the 2020 presidential election.

Now radical MAGA/QAnon Republicans are hellbent on enacting Jim Crow 2.0 voter suppression laws, the worst disenfranchisement of voters since the end of Reconstruction. Ari Berman explains, Jim Crow Killed Voting Rights for Generations. Now the GOP Is Repeating History.

For their part, Democrats have turned lately to a different section of the Voting Rights Act, Section 2, which bars regulations that result in racial discrimination. It has principally been used in the past for issues such as redistricting challenges.

“Section 2 is one of the only tools we have left to challenge discriminatory policies,” said Sean Morales-Doyle of the Brennan Center. “The wave of restrictive laws being introduced and passed in state legislatures across the country highlights once again how important it is to have a strong Voting Rights Act to protect voters.”

Arizona laws at issue

The case before the justices involves two Arizona regulations that a lower court held violated the Voting Rights Act.

One is a 2016 prohibition on assisting a voter with the return of her ballot. [Republicans use the pejorative term “ballot harvesting.”] It’s a practice that civic groups in Arizona have used to help Native American voters in rural areas who do not receive postal service at their doorstep. The second is a longstanding practice of wholly discarding ballots that are cast at the wrong precinct rather than partially counting them.

This is the disqualification of provisional ballots cast in the wrong precinct, even if in the right county or district — so-called “right church, wrong pew” ballots.

Arizona’s out-of-precinct policy is among the strictest in the nation because it discards votes for local candidates, but also for president, senators and members of the House of Representatives.

The 9th US Circuit Court of Appeals invalidated both provisions, stressing the state’s “long history of race-based discrimination against its American Indian, Hispanic, and African American citizens” and highlighting a “pattern of discrimination.”

Unlike fights against voting restrictions in Georgia and Texas, however, Democrats are divided on whether the two Arizona laws should be allowed to stand. The Democratic National Committee argues the rules should fall [WTF?], but the Biden administration told the court that the laws passed legal muster.

Broad impact depending on the court’s standard

The larger fight in the case is about the standard that the court comes up with to deal with future challenges that are currently ricocheting through the lower courts.

“On the surface this case is about two relatively narrow practices in one state, but it could have quite broad implications for the application of the Voting Rights Act in the future,” the ACLU’s Dale Ho, who has filed a brief in the case opposing the laws, said a recent event hosted by the liberal Constitutional Accountability Center.

Michael Carvin, a lawyer for the Arizona Republican Party, for example, asked the justices to hold that no challenges that concern so called “time, manner, or place” restrictions could be brought under Section 2. That would green light many of the laws that are currently being passed in states like Texas and Georgia.

Texas, for instance, is pushing for a ban on after-hours voting, and a mandate to limit Sunday early voting as well as requiring voters requesting absentee ballots to provide their driver’s license number or Social Security number.

“If the Supreme Court weakens the Voting Rights Act as they are being asked to do, it will make it much harder to stop the kind of legislation we saw Texan lawmakers try to ram through over the weekend,” Morales-Doyle said.

Arizona’s Attorney General Mark Brnovich takes a more nuanced position than the state GOP, arguing that a Section 2 violation requires a showing that the law produces a “substantial” disparate impact. He told the justices during oral arguments that the laws at issue survive scrutiny because they are “commonsense” and “commonplace” and prevent voter fraud.

The justices did not seem interested in the standard put forward by Carvin but that still leaves open plenty of room to limit Section 2 with a ruling that on its face may not appear to be too sweeping but still have a dramatic impact.

Ho and others are worried that the court could issue a ruling, for instance, that required evidence that there is a significant racially disparate impact on voter turnout. Such a standard would be hard for challengers to satisfy because it is difficult to always make a direct connection between fluctuations in voter turnout based on a single law. He is also concerned that the court could uphold the provisions based on the fact that they exist in other states with different circumstances.

There is also apprehension on the part of progressives that the court could point to fraud prevention as a justification for the laws, even if voting rights experts say it is not a prevalent problem.

Progressives seized on comments made by Carvin at oral arguments suggesting that the laws were necessary for pure politics.

“It puts us at a competitive disadvantage relative to Democrats,” he said in March. “Politics is a zero sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”

Carvin said the quiet part out loud, admitting to the discriminatory intent behind the Republican voter suppression laws. The Roberts Court will likely just ignore this admission.

You can follow the “live blog” of Supreme Court opinions every Monday in June at SCOTUSblog.com. I will cover the major opinions.