The Good, The Bad, and The Ugly
A review of court decisions important to progressives
Since Mitch McConnell successfully stacked the Supreme Court, we liberals act like our pets during July 4th fireworks; cowering under the bed, waiting for the next blast, which, we’re certain, will bring all of our rights, freedoms, and protections crashing down around our heads.
Every progressive in the nation is certain that the Court’s 6–3 majority of Tea Party extremists represents the end of democracy as we’ve known it. Each October brings more trepidation; we’ve watched which cases get taken and wailed with sorrow when it takes anything related to the ACA, LGBTQI+ rights, access to the ballot, women’s health care protections, or an assortment of other causes important to us.
Near the end of each term, we’re certain that the destruction of the progressive movement is as near as the next decision. Having suffered through Citizens United v. FEC, Shelby County v. Holder, and Janus v. AFSCME, we have good reason to be paranoid.
Usually, our angst hangs on a handful of cases. Since last June, the Court accepted 62 cases and delivered 67 opinions, the last one just a few days ago. The majority of these cases, frankly, aren’t of much interest to any but the closest SCOTUS watchers and legal professionals for whom one or another of the more arcane decisions might be relevant.
For example, back in October, the Court heard arguments in Texas v. New Mexico, which the Court decided in New Mexico’s favor. Trust me, you don’t care about this case or the decision unless Pecos River water rights are important to you.
On the other hand, even if you haven’t followed the Court at all this or any other year, you DO care about Texas v. California. Texas lost that one, too. We’re all better off for it. It protected the ACA against the conservative assault for the third time.
We progressives once hoped to win most, if not all of the cases that are important to us. Now, we just hope not to be utterly devastated. (Sadly, that day may come in the next few years but I’m getting ahead of myself.) How did we fare this year? Somewhere in between.
Let’s take a look at the Good (cases that went our way), the Bad (cases that didn’t go our way but shouldn’t cause us to jump out of windows), and the Ugly (cases that took a baseball bat to us).
The ACA Is Still Here…For Now
Texas v. California fits here. The fact that the Court took the case sent waves of anxiety through liberal communities. We know, of course, that the Evil Kingdom hates the ACA and this was its home run swing to get rid of it all, stem to stern, lock, stock, and barrel, the whole enchilada.
Texas sued, claiming that the tax required by the law was unconstitutional and, therefore, the whole darn thing was unconstitutional. California said, “You’re nuts.” Most legal minds, on the left and the right, also said Texas and the other right-wingers supporting the case were nuts. The Fifth Circuit decided that the tax was unconstitutional but made no decision as to whether the rest of the law was constitutional.
So, SCOTUS took it up. One can see why liberals were nervous, nay, wracked with fear. As silly as many said the suit was, the concern that Roberts and his right-wing monkey circus would just say, “The hell with it all,” wasn’t altogether baseless.
Happily, that’s not what happened. Even Thomas joined the seven court members who seemed to say, “You’re nuts…get out of here with that crap.”
It wasn’t that the Court listened to all the arguments, deliberated carefully, and came up with a well-developed decision that will protect the ACA for all time (which, it might have been better had they done just that, some argue). It was that the Court said “You shouldn’t even BE here. You have no standing. You can’t argue that you’re being injured by ‘zero tax’.”
If You Get Shot, That’s a “Seizure”
Torres v Madrid also went our way, 5–4. This decision preserves a broad understanding of “seizure” as put forth by the Fourth Amendment, which prohibits unreasonable “searches and seizures”. Roxanne Torres was shot and injured by two New Mexico police. When they sought to arrest her (in error, as it turned out), Torres thought she was being carjacked and successfully sped away but not before being injured by the officers’ bullets.
In his dissent, Justice Gorsuch argued that no seizure was involved because Torres got away. The majority decision, written by Justice Roberts, allowed as how being shot was, indeed, a “seizure”, even if one does get away. The decision will make it a bit easier to bring excessive force claims against overzealous law enforcement officers based on the Fourth Amendment.
They Decided Not To Decide
A smaller victory was won because of a SCOTUS decision not to take a case that left the decision of a lower court standing. The justices left in place a lower court’s ruling that the Gloucester County School Board had acted unlawfully in preventing Gavin Grimm from using the boys’ bathroom before he graduated in 2017. In doing so, the court opted against taking up a major transgender rights case that could have set a nationwide precedent on the issue.
It’s OK to Discriminate Against Gay Parents…Sometimes
We’ll look at this as our “Not Great but Could Have Been Worse” category. Fulton v. City of Philadelphia falls here. Most observers were surprised that the decision was unanimous and attribute that fact to Robert’s willingness to make it narrow enough to get the Court’s liberals on board. Philadelphia had canceled its contract with Catholic Social Services to assist with adoptions because the organization refused to place children with gay couples in violation of the city’s standards. The Court held that CSS was within its rights to refuse to serve gay couples as a matter of religious liberty and that Philadelphia couldn’t fire the agency.
Conservatives, while generally happy with the outcome, were upset that it didn’t go farther and forbid organizations to include any contract clauses that would prevent religious organizations from discriminating against gay men and women. Roberts finagled a decision in which the court’s opinion was written narrowly, sidestepping larger questions about the legality of non-discrimination clauses that might run up against religious rights. As it is, the Court recognized that the City had made exceptions to its non-discrimination policy in the past and should have done so in this case. Still, progressives remain concerned that the decision opens the door to allowing discrimination by any organization against LGBTQI+, Muslims, Jews, or Mormons if requiring non-discrimination would burden religious freedom in any way.
SCOTUS Just Doesn’t Like Voters
There’s no other way to say it: we liberals got smacked between the eyes, hard, by the Brnovich v. Democratic National Committee decision. The DNC argued that two Arizona laws disproportionately hurt minority voters. The first made it a felony for anyone other than a family member, caregiver, or postal worker to collect and deliver mail-in ballots. The second law made allows ballots submitted in the wrong precinct to be discarded. The 6–3 vote was along partisan lines.
Arizonans, especially rural voters and native voters are heavy users of mail-in voting. Fewer than one in five Native Americans in Arizona have access to home delivery and pick-up of mail. For example, the Tohono O’odham reservation, which covers an area larger than Rhode Island and Delaware, has no home delivery and only one post office. These rural voters often rely on friends or get-out-the-vote workers to deliver their ballots to polling stations.
Arizona has a habit of frequently moving urban precinct voting locations, which makes it more difficult for voters to avoid mistakes. In 2016, minority voters were more than twice as likely as non-minority voters to have their ballots discarded.
The Ninth Circuit Court found that both laws violated Section 2 of the Voting Rights Act because a “results test” showed that minority voters were, indeed, disproportionately harmed. (Section 2 prohibits any election regulation that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”)
The Supreme Court overturned this decision. It rejected the Ninth Circuit’s argument that the “results test” of the laws provided evidence of intentional discrimination. So, Section 2 still stands but, apparently, a law must explicitly indicate that its purpose is to prevent specific groups from voting to be found in violation. As such, the Court has severely crippled Section 2, all but eliminating it as a barrier to laws that restrict minority voting.
Justice Alito wrote for the majority: “Voting necessarily requires some effort and compliance with some rules.” Merely making it more “inconvenient” for certain groups to vote does not violate federal law, according to the court. In other words, states can make it “inconvenient” for specific groups to vote, plaintiffs can prove that specific groups are disproportionately harmed by that inconvenience…but it won’t make a difference.
My guess is that states will begin to push the definition of “inconvenient” to its limits over the next several years. If a state passes an election law that prohibits polling places in neighborhoods in which the median home value is $60,000 or less, would the Supreme Court see that as being too “inconvenient”? I think we’ll find out.
Unions Take A Hit
Another 6–3 ruling, in Cedar Point Nursery v Hassid, was a blow to union organization efforts. The six conservative justices decided that allowing union organizers to talk with employees on company property was a violation of the Fifth Amendment, which prohibits the government from taking property (something of value) without compensation.
Justice Roberts wrote the majority decision and claimed that a requirement by the state that union organizers be allowed its premises before a union vote “took” from the company its right to exclude those whom it didn’t want on its property. Not many of the rest of us would view a requirement to let someone temporarily on our land for lawful purposes “takes” anything of value away but that’s where we are with this Court.
In his dissent, Justice Breyer rightly points out that such a broad definition of “takings” could allow a company to prevent, say, any government official on the property unless the company is compensated. (On the issue of compensation, Justice Breyer noted that the plaintiff did not ask for compensation for the alleged “taking” nor claimed any injury because of it.)
This long-run impact of this decision (apart from the fact that it makes organizing more difficult) gets down into the weeds of “takings” law, which, for the most part, is above my pay grade. Essentially, it moves the goalposts as to just what constitutes a “taking” in ways that will protect the interests of the wealthy and powerful and make regulations that are in the interests of the community more difficult. It sets a precedent that will almost certainly be used against us in future decisions.
Dark Money Gets Another “Thumbs Up”
In yet another 6–3 decision (notice a pattern here?), the Court struck down a California law requiring nonprofits to report their major donors to state authorities. Writing for the majority, Justice Roberts wrote a far-reaching decision in Americans for Prosperity Foundation v. Bonta.
The plaintiffs contended that California’s law undermined their First Amendment association rights. They cited a Supreme Court decision from the 1950s decision that struck down an Alabama law requiring disclosure of all members of the NAACP, a law that was clearly intended to intimidate racial justice advocates in an environment where opponents of segregation were brutally targeted with state-sanctioned violence.
The defendants argued that the state asked for the same information that the IRS required and the law was needed to police charity fraud.
Even the casual reader will note that the Court defers to a state’s interest in preventing fraud when it desires to restrict voting but ignores that same interest when it affects “dark money” donations. As Justice Sonia Sotomayor writes in a dissenting opinion, “today’s analysis marks reporting and disclosure requirements with a bull’s-eye.”
The upshot is that wealthy donors will have far more ability to shape American politics in secret — and that ability is only likely to grow as judges rely on the decision in Americans for Prosperity to strike down other donor disclosure laws.
It Will Probably Get Worse Before It Gets Better
There were several other decisions of interest to progressives, but I’ve covered the most important cases (IMHO). (Here’s a good resource for analysis of additional cases of interest.)
There will be no rest for us progressives in the next term as the Court has already taken up several cases that will make us nervous. At the top of that list is a case from Mississippi that would ban abortion after 15 weeks of gestation, with narrow exceptions. The case is a direct challenge to Roe v Wade, which prevents states from banning abortion before fetal viability — around 23 or 24 weeks of gestation. Progressives are upset that the case was even taken up. Conservatives see it as their opportunity to finally cash in on their 6–3 majority to significantly reduce women’s rights to make their own health care decisions.
The Court is also stepping into the gun battles as it will hear a challenge backed by the National Rifle Association to New York state’s restrictions on carrying concealed handguns in public in a case that could further undermine firearms control efforts nationally.
We can assume that privileges of the wealthy and well situated will be expanded while the rights of women, workers, voters, and the poor will continue to be restricted.