The Supreme Court just completed the 2021-2022 term, and we can easily say it has been a term like no other. We saw arguably the most partisan and controversial court in recent memory. We saw an unprecedented leak and numerous contentious decisions. We saw increased security around the plaza and armed guards providing 24-hour protection at the justices’ homes. It has been a lot to take in! This blog post aims to outline the major decisions, what they mean, and what we can do.
The court’s ruling curtailed the EPA’s ability to regulate the energy sector, limiting it to measures like emission controls at individual power plants. The implications of the ruling could extend well beyond environmental policy.
This case arose from a challenge to the Obama-era Clean Power Plan. This plan never took effect, was repealed by the Trump admin, and the Biden administration said it does not intend to implement the plan. This is concerning because “federal courts cannot issue advisory opinions on hypothetical disputes but rather must limit their rulings to real controversies” (Brennan Center).
Charles Savage explains that the majority “used the case to entrench and strengthen the so-called major questions doctrine. Under that interpretation of the law, a court can strike down an agency’s regulation if it has significant economic effects and Congress was not explicit in granting that authority.”
Immigration and Border Patrol
The court cleared the way for the Biden administration to end a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico. While the decision is a small victory for immigrants, this ruling does not mean the “Remain in Mexico” policy has automatically ended.
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The decision is a small victory for immigrants at SCOTUS. Remain in Mexico used COVID as an excuse to turn people away at the southern border. However, the case does not end here, and it's going back to the Fifth Circuit—which has a history of ruling against immigrants.— United We Dream (@UNITEDWEDREAM) June 30, 2022
The court ruling limits people’s ability to hold Border Patrol agents accountable in court, and undercuts an important deterrent to misconduct. However, it does not sanction the agent’s unconstitutional actions or grant permission to violate people’s rights in the future.
Law Professor and contributing writer to SCOTUSblog, Howard Wasserman agreed that this ruling is a blow to the broader project of policy accountability “because it severely limits one really good way of deterring law enforcement and governmental misconduct and establishing accountability, which is private suits for damages.” For a deeper dive about this ruling and clarification about our rights in the border region, go here.
The court ruled that state authorities may prosecute non-Indians who commit crimes against Indians on those reservations. In 2020, the McGirt v. Oklahoma decision declared that much of eastern Oklahoma falls within an Indian reservation, preventing state authorities from prosecuting offenses that involved Native Americans. The Oklahoma v. Castro-Huerta ruling narrows this 2020 decision.
Chuck Hoskin Jr., the principal chief of the Cherokee Nation, said “the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law.”
This #SCOTUS opinion in #CastroHuerta is an act of conquest. Full stop.— Elizabeth Hidalgo Reese (Yunpovi) (@yunpovi) June 29, 2022
The right and power of tribes to rule themselves is being dismissed in favor of state power.
Tribes are…I can’t even write it…part of states.
Separation of Church + State
The court ruled that a football coach at a public high school had a constitutional right to pray at the 50-yard line after his team’s games.
Explaining why this is a problem, Heather Weaver and Daniel Mach said, “The Supreme Court has long recognized that the separation of religion and government is especially important in our public schools, which must equally serve students of all faiths, and those of none. When public-school officials demonstrably favor some faiths over others or promote religious doctrine, it sends a message of exclusion to students who don’t follow the preferred faith. And students are especially vulnerable to coercion, both subtle and overt, when subjected to school-sponsored prayer or other official religious exercise.”
The court ruled that a Maine program that excludes religious schools from a state tuition program is a violation of the free exercise of religion. AKA taxpayers in Maine must fund religious education at private schools as part of its tuition assistance program, marking the “first time that the Court has explicitly required taxpayers to support religious instruction at private schools” (ACLU).
Both decisions are part of a trend to bolster religious rights, notably those of Christians. In her dissenting opinion, Justice Sotomayor wrote, “the court sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance.”
Expanding the 2nd Amendment
The court ruled that states with strict limits on carrying guns in public violate the Second Amendment. Justice Thomas took a broad approach in his majority opinion stating that people in the U.S. have an individual right to keep and bear arms in public for self-defense. And he fundamentally rewrote the process by which every court in this country considers gun safety laws.
Thomas wrote that the Constitution “presumptively” protects conduct covered by the Second Amendment’s plain text. Therefore, it will be up to the government that is seeking to implement a new restriction to prove to the courts that the “regulation is consistent with this Nation’s historical tradition of firearm regulation.”
The court ruled that a Mississippi law that bans most abortions after 15 weeks is constitutional and overturned the constitutional right to abortion established by Roe v. Wade in 1973.
Practically speaking, the Dobbs opinion means that state and federal lawmakers now have the ability to enact abortion restrictions up to and including outright bans. Without the federal right to abortion, about half the states are expected to ban abortion in the near future. Some of the laws took place immediately after the ruling came down, some will require additional action to put the law into effect, and some states will pass new laws.
Jessica Arons reminds us that, “This didn’t happen overnight… Anti-abortion politicians have spent decades enacting a patchwork of abortion bans at the state level that pushed abortion out of reach and laid a foundation for the moment we find ourselves in now: when they can ban abortion throughout wide swaths of the country” while working toward their ultimate goal of outlawing abortion nationwide.
Limiting Miranda Rights
The court limited the ability to enforce Miranda rights in a ruling that said that suspects who are not warned about their right to remain silent cannot sue a police officer for damages under federal civil rights law even if the evidence was ultimately used against them in their criminal trial. This is a substantial backtrack from the Miranda promise.
Brett Max Kaufman clarifies, “While the court’s decision does not as a formal matter reduce the police officer’s obligation to issue Miranda warnings — or what individuals in police custody should do or say (or not do and not say) — it cuts off a critical means by which people whose rights have been violated can actually vindicate the promise of those rights. In that sense, it’s a sad day for Miranda, the Bill of Rights, and the most basic conception of accountability.”
What’s Coming in the 2022–2023 Session
SCOTUS agreed to hear Moore v. Harper, an appeal advocating for an extreme interpretation of the Constitution that could make it easier for state legislatures to suppress the vote, draw unfair election districts, enable partisan interference in ballot counting.
Today’s news that the Supreme Court is taking up the Moore v. Harper case ahead of 2024 should scare the hell out of all of us. This Court could gut our Presidential elections the same way they just gutted Roe. Here’s a 🧵 on why it’s so dangerous and what we can do about it. 1/— Mallory McMorrow (@MalloryMcMorrow) June 30, 2022
For a deep dive of what this means, go here. TL;DR Ethan Herenstein and Thomas Wolf outline, “The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to former federal judge J. Michael Luttig — a distinguished conservative jurist — the theory is a part of the ‘Republican blueprint to steal the 2024 election.’”
The court is also set to hear arguments in October in the case Merril v. Milligan, which election lawyers and civil rights groups worry could undermine the Voting Rights Act.
What We Need To Do
1. Expand the Court
Congress has the ability to change the number of justices on the Supreme Court at any time, and has done so 7 times throughout history. They need to pass the Judiciary Act of 2021, adding 4 seats. Check to see if your Senator is a co-sponsor, and if they aren’t call them and demand they sign onto the bill.
2. Create a Binding Code of Ethics
The Supreme Court is the only court in the country that does not implement a code of ethics for its judges. Email your Senators to pass the Judicial Ethics and Anti-Corruption Act, which would create a code of ethics and impartiality for SCOTUS justices.
3. Depoliticize SCOTUS by instituting term limits for justices
Representative Ro Khanna introduced the Supreme Court Term Limits and Regular Appointments Act of 2021 last summer. The bill establishes staggered, 18-year terms for Supreme Court Justices and limits the Senate's advice and consent authority in relation to the appointment of Justices. Norm Ornstein believes term limits are “the best solution to the increasingly politicized and unseasoned Court.”
4. Investigate Clarence Thomas
Thomas failed to recuse himself when hearing a case regarding the January 6 committee's access to former president Donald Trump's documents, despite an apparent conflict of interest involving his wife, Ginni Thomas. Ginni was at the “Stop the Steal” rally and exchanged messages with the chief of staff. Senator Warren is demanding an explanation and there is a petition to impeach Thomas that has over 1 million signatures.
Clarence Thomas should resign.— Alexandria Ocasio-Cortez (@AOC) March 29, 2022
If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.
5. Abolish the filibuster
With rulings such as WV v. EPA, we saw an enormous amount of power switch to the courts (and ultimately the Supreme Court) since they would be the ones deciding when a federal agency overstepped. We can assume that this broad ruling on agency power will call hundreds of regulations into question, meaning that it would require passing legislation to restore them. With a bitterly divided Congress, this is only possible by abolishing the filibuster.
For a deep dive into what the filibuster is and how to eliminate it, go here. And if you’re arguing with a filibuster-loving friend, go here for “every argument for the filibuster, considered and debunked” by Ezra Klein.
Last September, the House passed the Women’s Health Protection Act, which creates legal protections for bother abortion providers and abortion care patients at the federal level. The bill safeguards access to abortion nationwide by preventing restrictions such as six-week bans, mandatory delay periods, biased anti-choice abortion counseling, and medically unnecessary ultrasounds.
In Justice Thomas’s concurring opinion in the Dobbs decision, he welcomes vehicles that would allow the court to revisit other major decisions, such as the Griswold decision guaranteeing the right to contraceptives; the Lawrence decision decriminalizing sodomy for same-sex couples and others; and the Obergefell decision legalizing same-sex marriage nationwide. And while not explicitly mentioned, this podcast outlines how dismantling Roe puts interracial marriage at risk as well. This means Congress needs to act quickly and codify the right to contraception, LGBTQ+ equality, and marriage equality.
Finally, Congress must pass legislation to enshrine the right of individuals to sue federal law enforcement officers and receive damages from agents who violate their rights. Shaw Drake and Katie Hoeppner explain, “If it did so, victims of Border Patrol abuse would no longer have to contend with the Egbert ruling, and more broadly, the availability of this important remedy for abuse by federal agents would no longer depend on the willingness of increasingly-hostile courts to allow Bivens cases to go forward.”
The weight of this moment is undeniably crushing. Despite what we knew was coming, we feel grief-stricken, overwhelmed, and scared for what’s to come. And yet, no matter what, we will continue to show up for one another and fight. Let us leave you with these words from Gloria Steinem: