A Supreme Court that Only Their Mothers Could Love

Carole Levine, Chair of Courts Matter Illinois           

July 5, 2024

We have reached the end of this Supreme Court session.  It will be noted as a Court session where  only 61 cases were heard, 13 fewer than–the Court’s  average of 74.3 cases over the past 15 years.   This session will also be marked as a one where scandal and court ethics were front and center and one where, for the most part, the Justices remained true to the party lines of the Presidents who appointed them. It was also a session with some blockbuster cases and decisions as well as some “non-decisions” that simply kicked the can down the road to allow lower courts to wrestle with, leaving the door open for further adjudication.

The makeup of this Supreme Court does not bode well for liberal and progressive issues. Only three Justices ,all appointed by Democratic Presidents, make up the Liberal block.  The remaining six Justices, including Chief Justice John Roberts, constitute a block of conservatives and were  Republican appointees.  It would be idealistic to think that those who sit on the highest court in the land would look at cases from a position of neutrality.  But the reality is that this does not happen.  Justices who told the Senate Judiciary Committee that Roe v. Wade was settled law during their hearings prior to the Senate confirming them onto the Court were quite happy to vote to overturn it two years ago.  And this was the only federal court that operated without a Code of Ethics until this year.  A Code that has now been adopted by the Supreme Court is so open-ended that one could drive a truck through it.  Clearly, some members of this Court see themselves as beyond needing this kind of “guidance” and have, in this session, chosen to participate in cases  (such as the January 6^th case, where Justice Thomas’ wife was involved) where they clearly had clear conflicts of interest and should have recused themselves.  It is not surprising that the public trust in the Supreme Court is at an all-time low.

As you read my summary of some of the key cases and decisions heard this session, I urge you to think about what it means for a Supreme Court which has lost public support to be staking out such a partisan and divisive view of constitutional law:

Gun Cases:  There were three cases, including one about defamation of the NRA itself,  under this heading. Two of these directly impact the “right to bear arms” issue..

• Decided 8-1 with Clarence Thomas dissenting. The Court ruled that a federal law that makes it a crime for people subject to domestic violence restraining orders to own guns does not violate the Second Amendment.  This was a well-received opinion, even among gun owners.

• Garland v. Cargill: Decided 6-3 with the liberal Justices dissenting.          The Court ruled that the definition of a “machine gun” relates to how the trigger fires and not the rate of fire and therefore a semiautomatic rifle equipped with bump stock cannot be considered a machine gun.  This decision does away with one of the few efforts at gun control that gained some political support after the Las Vegas massacre in 2017.

• National Rifle Association of America v. Vullo: Decided 9-0                                         This case is really a First Amendment case, but it involved a New York State official who tried to persuade companies not to do business with the NRA after the school shooting in Parkland, Florida.  The NRA sued. The Court found for the NRA who were represented by the American Civil Liberties Union.

Reproductive Rights:  The Court heard two cases on Reproductive Rights this session, each with far-reaching implications.

• FDA v. Alliance for Hippocratic Medicine: Decided 9 -0

This decision of the Court upholding recent FDA guidelines for distributing the most commonly used abortion drug – Mifepristone – was based on standing – that the plaintiffs did not have the right to sue.  While this ensures full access to Mifepristone, it does not undue state abortion bans and restrictions, nor does it prevent new lawsuits from future plaintiffs who could pass the “standing” test.

• Idaho and Moyle v. the United States: The cases were dismissed and sent back to lower courts. In an unsigned opinion, the Courts dismissed a case about emergency abortions in Idaho, which will allow women to receive abortions when their health is at risk.  The decision reinstates a lower court’s ruling, placing a stay on Idaho’s near total abortion ban.  The law in question was EMTALA (Emergency Medical Treatment and Labor Act) which requires emergency rooms to provide stabilizing treatment in emergency situations.  Those treatments could include abortions.

Restrictions on the Homeless: One key case was heard that impacts the growing issue of homelessness in our nation. It involved what options are left for the homeless when there are no shelter spaces available.  

• City of Grant Pass v. Johnson: Decided 6-3 with the liberal bloc dissenting.

When the city of Grants Pass, Oregon passed an ordinance to make it illegal for people, including unhoused people with no access to shelter, to sleep outside in public, the 9^th Circuit Court of Appeals ruled that it violated the Eighth Amendment’s ban on cruel and unusual punishment.  The Supreme Court disagreed with the lower court and reinstated the ordinance.  Homeless people may now be ticketed or arrested for sleeping in public places.

The “War on the Administrative State”:  This SCOTUS term saw a number of cases that would seem to fall under this ominous title.  These were all cases that sought to limit the power of the Executive branch of the Federal Government to fulfill their responsibility to implement the laws enacted by congress.  The question that will remain following these decisions will be where will the expertise on these complicated, regulatory issues come from?

• Loper Bright Enterprises v. Raimondo & Relentless v. Department of Commerce: Decided 6-3 with the liberal block dissenting.

In this case the Court overruled a foundational 1984 precedent – the Chevron Deference – that required courts to defer to Executive Branch agencies’ reasonable interpretations of statutes that were ambiguous.  Chevron is one of the most cited cases in American law.  This decision threatens regulations on the environment, health care, consumer safety, nuclear energy, government benefit programs and guns.  It also shifts the power of interpretation from agencies with experts, to Congress and judges.

• Ohio v. Environmental Protection Agency: Decided 5-4 with Amy Coney Barrett joining the three liberals in dissent.

This is a case about cross-state air pollution.  The federal Clean Air Act’s “good neighbor” provision addressed trans-state ozone pollution and set new air-quality standards in 2015.  States were required to submit plans, many of which were rejected by the EPA and required federal interventions.  This sparked this legal challenge in which the majority of the Supreme Court held that this regulation should be stayed and sent back to the DC circuit court.  The ruling allows winds to carry emissions of nitrogen oxide toward Eastern states that have fewer industrial sites, and its pollutants are linked to asthma, lung disease and premature death.

• Securities and Exchange Commission v. Jarkesy: Decided 6-3 with the liberals dissenting.

The Court ruled that the Securities and Exchange Commission’s in-house administrative courts are unlawful.  What this means is that agency’s ability to bring civil penalties against lawbreakers is gone and they no longer have any power to enforce laws and regulations. This may not only mean that the S.E.C. will have to file cases in federal court but it could also impact and endanger the enforcement powers of many other agencies.

• Corner Post v. The Federal Reserve: Decided 6-3 with the liberal justices dissenting.

This case eliminates the 6-year statute of limitations for filing a lawsuit against the United States from the time a law is enacted.  The Justices ruled that the timing of the filing does not start until the party is injured.  Writing for the Court, Justice Barrett indicated that a

Voting Rights: The ability of the Supreme Court to weigh in on issues of voting rights is among the most critical it has. The Court sets the bar for state lawmakers to make laws and draw maps that outline voting districts and can ensure legislative control.  When it comes to voting rights, race and party dominate the discussion.

• Alexander v. South Carolina Conference of the NAACP: Decided 6-3 with the liberal Justices dissenting. The Supreme Court upheld a South Carolina congressional map that had been deemed a racial gerrymander by the lower court that stated that it was a “bleaching of African American voters” from a district. By declaring this was a partisan and not a racial gerrymander and this decision chips away at the Voting Rights Act (VRA).  While the case will go back to the lower court, the map in dispute will be used in the 2024 election, making the area in dispute a Republican stronghold.

Obstruction of Justice and Immunity from Prosecution: Rather than place the Trump immunity case in a category of its own, I am choosing to include it alongside the cases of “bribery”, who decides who gets onto a ballot, and federal obstruction statutes used in the January 6^th inditements. All of these cases are linked in various ways… Hopefully, the connections will be clear and the linkages between these four cases (although certainly unplanned when they were filed) will seem logical.

• Snyder v. United States: Decided 6-3 with the liberal Justices dissenting.

In a most interesting case, the Court held that it is not a criminal action to accept a payment (or a “reward” or “gratuity”) to a state or local  official for something that has already taken place or is committed to take place.  This is fine as long as the agreement or promise was made after the action was taken.  At the center of this case was a check for $13,000 to James Snyder, mayor of Portage, IN upon the purchase of new garbage trucks.  Claiming the trucks had already been purchased, with no prior agreements, before the check arrived, Snyder was cleared of charges by the Supreme Court.

• Trump v. Anderson: Decided 9-0.

The Supreme Court broke new ground in this decision, allowing that Donald Trump could not be barred from the Colorado state ballot under Section 3 of the 14th Amendment (prohibiting insurrectionists from holding office).  This was a first for this, or any Supreme Court as there are no precedents to refer to in this arena. They had never before been asked to consider the scope of Section 3.

• Fischer v. United States: Decided 6-3 with Sotomayor, Kagan and Barrett dissenting.

The question before the Court in Fischer was whether or not the statute used to indite was valid to use to bring charges against him.  The Act – a provision of the Sarbanes Oxley Act – states that the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.  This law, prior to Jan. 6^th, had predominantly been used for financial fraud cases.  SCOTUS ruled that prosecutors inappropriately used this statue to indict people where there were no physical government materials related to his supposedly obstructive behavior in order to charge him.  This case may potentially affect the case against former President Donald Trump and others from January 6^th .  But how this will play out is not yet clear.

• Trump v. United States: Decided 6-3 with the liberal Justices strongly dissenting.

Former President Trump asked the Court to rule that he cannot be held criminally liable for any official acts as president, even after leaving office and even where the crimes might concern the peaceful transition of power. The Court’s decision to award the chief executive near-total immunity from “official” acts and possible immunity from “unofficial “ acts for any crimes committed during a term in office, reinstates a king-like quality to the office of President. There is little light between what the Court deems “official” and “unofficial”, so there is little that would be off the table in terms of Presidential actions. There is almost no accountability for Presidential actions in this decision.  In separate dissents, both Justices Sotomayor and Jackson point to the harm that this decision does.  Jackson writes that Monday’s ruling “has unilaterally altered the balance of power between” the three branches of government, giving more power to the courts and the executive branch at Congress’s expense. And it “undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power.” She characterized the “practical consequences” of the ruling as “a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”

So, in a Supreme Court that heard fewer cases than most years, this was truly a blockbuster session.  And I did not cover its decisions on Social Media (Netchoice v. Paxon and Moody v. Netchoice), or on the Opioids case (Harrington v. Purdue Pharma), or on the attempt to take down the Consumer Finance Protection Bureau (CFPB v. Community Financial Services Association of America), as well as many others.  It is not easy being a Court Junkie!  But this was a momentous SCOTUS session, that will have ramifications that will echo well beyond these cases. 

This is a Supreme Court like no other.  It is not well-liked. Its Justices do not seem to get along, aside from ideological disagreements. There is concern about the bias that is seen coming from both sides of the isle and there is a lack of ethical accountability in the limited number of recusals this session.  Trustworthy is not a word I would use in describing this Court.  It is clear that the Right wing is in control, and I am concerned about the cases they have already accepted for the 2024-25 term.  Among those cases will be yet another environmental case affecting multiple states, and a case about gender affirming care for minors.  I am sure there will be more to come on reproductive rights and voting rights.

I end this long piece with from Dahlia Lithwick and Mark Joseph Stern of Slate who write about the Court.  They recently reflected on this session and this Court and wrote:

In the course of its most recent term that conservative supermajority has created a monarchical presidency, awarding the chief executive near-insurmountable immunity from accountability for any and all crimes committed during a term in office. It has seized power from Congress, strictly limiting lawmakers’ ability to write broad laws that tackle the major crises of the moment. And it has hobbled federal agencies’ authority to apply existing statutes to problems on the ground, substituting the expert opinions of civil servants with the (often partisan) preferences of unelected judges.  

I await the first Monday in October, when the Supreme Court will, again, be in session.