SCOTUS Watch: The Final Four – Two Opinions Today, Two Opinions Tomorrow

The U.S. Supreme Court issued two opinions on Wednesday, and one from its emergency docket (“shadow docket”) on Tuesday.

The two final cases to be announced on Thursday morning are (h/t Amy Howe):

West Virginia v. Environmental Protection Agency (argued Feb. 28): A challenge to the EPA’s authority to regulate greenhouse gases. One question before the court is whether the Republican-led states and the coal companies have a legal right to bring the case to the Supreme Court at all when the lower court’s decision is on hold until the Biden EPA issues a new rule. If they do have that right, a second question before the justices is whether the lower court’s decision violates the “major questions” doctrine — the idea that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly.

Biden v. Texas (argued April 26): Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.

Today the Court announced opinions in two cases.

In the first opinion, the Court revisited its opinion in McGirst v. Oklahoma, a 5-4 decision by Justice Gorsuch:

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of fed- eral criminal law. Because Congress has not said other- wise, we hold the government to its word.

With a new slate of Justices, the court rules 5-4 the other way in Oklahoma v. Castro-Huerta, with Justice Gorsuch in a stinging dissent.

Justice Brett “I like beer” Kavanagh writes for the majority, holding that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.

Kavanagh and Gorsuch attack each others reasoning n their opinions.

From Kavanagh:

From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. The dissent’s views about the jurisdictional question presented in this case are contrary to this Court’s precedents and to the laws enacted by Congress.

From Gorsuch:

Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain for- ever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.

Gorsuch’s dissent is 42 pages long, presenting a history of Indian treaties with the U.S. government and Indian law. He concludes:

Now, at the bidding of Oklahoma’s executive branch, this Court unravels those lower-court decisions, 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. 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.

The second opinion is Torres v. Texas Department of Public Safety, a 5-4 decision by the retiring Justice Breyer, likely his last majority opinion as a Supreme Court Justice.

The question before the court in Torres is whether states can invoke sovereign immunity as a defense to block lawsuits by returning veterans who want to reclaim their prior jobs with state employers.

Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers and authorizes suit if those em- ployers refuse to accommodate veterans’ service-related disabilities.

The court holds “By ratifying the Constitution, the States agreed their sovereignty would yield to the national power to raise and support the Armed Forces. Congress may exercise this power to authorize private dam- ages suits against nonconsenting States, as in USERRA.”

On Tuesday, the Roberts Court continued its unending assault on the Voting Rights Act with a case on its “shadow docket.” The Court ruled in favor of extreme GQP gerryamndering which eliminated an majority-minority district.Supreme Court frees Louisiana to use congressional map drawn by GOP:

The Supreme Court on Tuesday cleared Louisiana to use this fall a Republican-drawn congressional map that a federal district judge said likely diminishes the electoral power of the state’s Black voters.

The justices agreed with a request by the state’s Republican secretary of state to put on hold U.S. District Judge Shelly Dick’s order that the state create a second district where African Americans would have the opportunity to elect a candidate of their choice. An appeals court backed the district court’s decision, but the [GQP] state legislature refused to redraw the map.

The Supreme Court majority on Tuesday did not supply a reason for granting the state’s request, as is common in emergency orders. [It’s the Roberts Court, the reason is IOKIYAR.] But it noted the court has accepted for the term that begins in October a case from Alabama that raises similar questions about a state’s obligation to create what can be known as majority-minority districts under the Voting Rights Act.

This means that the Roberts Court wants to further gut the Voting Rights Act by eliminating minority representation districts.

The court’s three liberal justices — Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said they would have denied the state’s request. That would have meant new districts before the fall elections.

Louisiana has six members of Congress. But only one of the districts is majority-Black, even though African-Americans make up about one-third of the state’s voters. The state’s Democratic governor, John Bel Edwards, vetoed the map, but its Republican-led legislature overrode the action.

In a separate case in February, the Supreme Court stopped a lower court’s order that Alabama redraw its congressional map to accommodate the growth of Black voters there. The lower court called for a second district favorable to Black candidates.

Justice Brett M. Kavanaugh, who was in the majority in blocking the lower court order, said the map drawn by the legislature should remain in place, and that the court take the case to decide the merits of the dispute. It involves what Republicans say is a conflict between the demands of the Voting Rights Act and the Equal Protection Clause’s guarantee that race not play too prominent a role in government decisions.

“The underlying question here is whether a second majority-minority congressional district (out of seven total districts in Alabama) is required by the Voting Rights Act and not prohibited by the Equal Protection Clause,” Kavanaugh wrote. “But the Court’s case law in this area is notoriously unclear and confusing.”

The Alabama case, Merrill v. Milligan, is one of the first the court will consider in October. Tuesday’s order said the Louisiana case would be held until the Alabama case is decided.

The takeaway from this term of the Supreme Court is that we have a “rogue court” of radical Republcian extremists who believe that 5 (sometimes 6) unelected Justices have the power to say “The law is whatever we say it is,” ignoring precedent and stare decisis and the separation of powers under the Constituion,  downplaying the powers assigned to the other two branches of government. This is a Supreme Court drunk on its own abuse of power, and it must be brought under control.

SCOTUS press release: “This Court will announce all remaining opinions ready during this Term of Court on Thursday, June 30, 2022, beginning at 10 a.m.” And then presumably we will get the “clean-up” order list on Friday morning.