Three Supreme Court posts in a row. This may be the start of an unfortunate trend. While the Court’s decisions can be very difficult to parse, they are nonetheless very important.
As a prelude, I’ll note that Ketanji Brown Jackson was sworn in this week as the first black woman on the Supreme Court. While we should celebrate the elevation of a well-qualified justice who also happens to be a member of a heretofore unrepresented minority, we must also mourn the loss of Stephen Breyer’s voice on the Court. Breyer has been a fair and articulate jurist who has calmly and honorably defended the Constitution for 28 years.
Unfortunately, we must also mourn the fact that this change does not alter the ideological lock that the pseudo-conservative (read: blindly Republican) majority now has on the Court.
While news cycles have been focused on Dobbs, it is also worth paying VERY close attention to other recent and upcoming actions of the Court. Some are obvious intrusions on democracy; others are more subtle yet even more insidious. Below is a brief rundown of some of the cases decided by the Court’s new owners in their very first term.
Dobbs v. Jackson
I’ve already weighed in on Dobbs. This 5-1-3 decision overturning Roe v. Wade does seem to stand above all of the horrible decisions rendered by the Supreme Court this term – not just for the massive ramifications that are being immediately felt throughout the nation, but for all of the harrowing decisions that will undoubtedly follow both directly and indirectly from the public assassination of a long-standing precedent and the evisceration of the right to privacy.
New York State Rifle & Pistol Association v. Bruen
In a 6-3 decision, the Supreme Court decided that states can’t place limitations on individuals carrying guns in public. While New York is likely to test the boundaries of the decision, the text of the ruling seems crystal clear: Reason is off the table. There can be no limits and all challenges will fail. Wanna carry your AR-15 onto a children’s playground? State laws can’t stop you.
So much for states’ rights. Apparently, such rights are only valid when they don’t conflict with the opinion of the Supreme Court majority.
West Virginia v. EPA
While the case itself may seem a bit boring, the decision is definitely not.
The boring part: The Court just took away the EPA’s power to regulate carbon emissions at power plants under the Clean Air Act as passed by Congress in 1970. That act gave the EPA the power to regulate any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” The EPA’s regulations have always been subject to the desires of the resident administration and, indeed, such regulations have changed as expected over time. Whether it was a good idea or not, Congress unquestionably empowered the EPA to make and enforce environmental regulations. Or not.
A 6-3 Supreme Court majority, however, decided that the Biden administration’s EPA no longer has the right to regulate CO2 emissions. Their legal argument is based upon an expansion of the Court’s “major questions doctrine.” That “doctrine” – invented by the Court out of thin air and found nowhere in the Constitution – contends that the Court can strike down any regulatory action of “vast economic and political significance.” Since the definition of such significance is entirely up to the Court itself., Justice Kagan’s dissent rightfully called out this “frightening” new judicial power.
The Court’s majority just gave themselves the unilateral authority to cherry-pick which administrative regulations they like and which they don’t – not just within the EPA but across the whole government. This effectively takes regulatory power out of the hands of agencies of the executive branch – staffed with professionals in their fields and overseen by elected officials – and migrates that power to a handful of unaccountable justices with no expertise at all in the related fields.
Children, can you spell “Activist Court”? I knew you could. Welcome to Mister Robert’s Neighborhood!
Kennedy v. Bremerton School District
This 6-3 decision is simply bizarre. The ruling ostensibly finds in favor of a high school coach who was fired for exercising his own personal right of religious freedom to silently pray at the 50-yard line after football games. Gorsuch’s opinion for the majority claims that the coach “offered his prayers quietly while his students were otherwise occupied.” Few could or would reasonably argue with the ruling given that scenario. Cool.
Well, except that Gorsuch’s description of the case is not at all consistent with the facts.
I don’t doubt that the coach is sincere, but his prayers were definitely not offered privately nor in silence. Nor were the prayers offered by spontaneous gatherings of students. As photographs and videos clearly show, these were large, public, non-silent Christian devotions taking place on school grounds that were organized and led by an employee of the school who had both real and perceived power over the participants who knelt around him.
Sure, the coach claims that player participation was entirely optional – and that could well have been the case. However, the possible perception – as verified by the students’ parents – was that those students who didn’t participate in the prayers might be ostracized and/or might get less playing time as a result. While your boss likely wouldn’t require you to buy Girl Scout cookies when he brings his daughter by your office, raise your hand if you would feel no pressure whatsoever to smile and buy that box of Thin Mints.
“Pray to Play” is not only a bad school policy. It’s an insult to anyone whose moral compass compels them to pray in silence. And it most certainly should not have been enshrined as a Constitutional right.
Carson v. Makin
The specific state program in question paid the private school tuition for those students in rural areas who did not have easy access to public schools. While the program did not exclude religious schools, it did require that all eligible private schools provide students with an education that aligned with secular state standards.
In a sweeping 6-3 decision (you may notice a trend…), the Court effectively overrode decades of precedence supporting the separation of church and state. The overly broad ruling not only permits the use of state money to fund religious schools, it now requires it – even if such schools do not meet state standards and even if such schools are openly institutions of religious indoctrination.
Around 37 state constitutions prohibit their state governments from funding religious institutions, including schools. This ruling invalidates all of those bans. As Justice Breyer noted in his dissent, the majority opinion has the potential to completely dismantle secular public education in the United States by enabling parents to bail out of the public school system and demand public tax money for a parochial education free of any standards.
If the Three R’s all stand for Religion, we’re not going to have to worry about losing world leadership to China. The next generation won’t even be able to find it on a map. Or spell it. Or count the number of ways we’re gonna get screwed.
Biden v. Texas
What, you say? The Biden administration actually won this case! Yeah, but it was a 5-4 decision when it should have been 9-0. The case was specifically about whether the Biden administration had the power to end the previous administration’s “Stay in Mexico” immigration policy. While I understand the political preferences on both sides of the argument, the legal issue was incredibly simple.
The case boiled down to whether or not a new administration can reverse an executive policy implemented by a previous administration. Regardless of one’s political leanings, the answer should be resoundingly affirmative. That’s kinda what elections are all about.
While there was some legal crap in the dissent, the minority’s opinion was unabashedly political – arguing the merits of the immigration policy and not the legality of its suspension by a new administration. Seriously? Even worse, Kavanaugh wrote a separate, narrow concurrence with his deciding vote that fully agreed with the minority’s political stance but begrudging acknowledged that maybe this wasn’t the Court’s issue to sort out.
So, by one vote, the Supreme Court decided that elections matter. Woo hoo.
Moore v. Harper
Sure. This case doesn’t come before the Court until this fall. The likely outcome, however, is grim enough to warrant an early review.
The issue comes to the Court after the North Carolina State Supreme Court ruled that the NC legislature’s gerrymandered congressional map violated the state’s constitution. The gerrymandering was obvious and not itself contested. NC is fairly equally divided between Democrats and Republicans but the Republican-drawn map would likely give Republicans 10 of the state’s 14 congressional seats.
The NC legislature is going to the Supreme Court with a radical theory that they alone have the power to fully regulate NC elections – with no oversight whatsoever from state or federal courts. They don’t argue that their map isn’t a gerrymander; they argue that they can do whatever the hell they want.
If the Supreme Court rules in their favor, the gerrymandered NC map will prevail. That, however, won’t be nearly the worst of it.
If state legislatures are given sole and absolute power over elections in their respective states, they can quite literally guarantee their own eternal hold on political power. They can draw whatever maps they want. They can decide who can vote and who can’t vote. They can – and will – ignore any popular vote in Presidential elections (or perhaps not even hold them) and send their own slate of Electors to the Electoral College.
Note, of course, that any ruling will apply to all 50 states. Since Republicans fully control the legislatures in 30 states – including most of the current swing states – the Democratic party could cease to be a factor and elections as we know them in America could cease to exist.
Given the blatantly partisan Supreme Court majority, anyone wanna place a bet here?
Well, great. I’ve now managed to even depress myself. I think I’ll go read something a bit more uplifting. Like “The Grapes of Wrath” … or “Flowers for Algernon” … or ”Lord of the Flies”…