In the last week of June, the Supreme Court handed down decisions that overturn many decades of established law. Five decisions alone should be enough to mobilize Democrats to come out in full force to vote on November 8.
This page gives a fuller description and perspective about these decisions from three online sources, which are noted in the text, the day after the rulings were made public. Also, in the days following, there has been fallout from and discussion about these decisions, so more articles of interest have been added to this post. There’s a lot to unpack on this page, but valuable if you missed it in the news cycle. Use the links below to read what you’re interested in.
- New Country, Who Dis?
- Letters from an American on June 30, 2022
- We Have Made It Through the Worst
- Abortion Rights Teetering in Virginia?
- The Constitution Isn’t Working
New Country, Who Dis?
By Kimberly Givant, Editor of The Recount Newsletter
The 2022 Supreme Court term is over – and just like that, America today is not the country it was a mere month ago. This was our first full term seeing the Court’s conservative super-majority in action, and it showed. Here’s a rundown of the way the nation’s highest court has dramatically changed our country – also broken down in video form here and here.
Abortion rights: In Dobbs v. Jackson Women’s Health Organization, the Supreme Court ruled that states can ban abortion at any point, completely tossing Roe v. Wade and Planned Parenthood v. Casey, the nearly 50- and 30-year-old precedents protecting abortion as a constitutional right. According to the New York Times, there are currently 17 states where abortion is now banned, likely to be banned soon, or where there’s a ban being temporarily blocked by a federal judge.
Environmental protections: In West Virginia v. Environmental Protection Agency, the Court ruled that the executive branch, including the EPA, cannot set rules to reduce greenhouse gas emissions without authorization from Congress – dramatically limiting the government’s ability to regulate climate change. Justice Elena Kagan wrote in dissent: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”
Civil rights: You know those Miranda rights you’ve seen on TV and in movies? “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” In Vega v. Tekoh, the Court ruled that police officers may not be sued under a federal civil rights law for failing to administer the warning mandated by the Supreme Court nearly 60 years ago.
Guns: In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court ruled that New York’s gun law placing restrictions on carrying a concealed handgun outside the home violates the Second Amendment – essentially stripping states of the ability to regulate firearms. Mark Joseph Stern, a senior writer for Slate, wrote: “The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.”
Religion: The Court this term essentially said, “to hell with the separation of church and state.” In Carson v. Makin, the Court ruled that any state that funds private schools also has to fund religious schools – with taxpayer money. In Kennedy v. Bremerton School District, the Court ruled that a high school football coach had a constitutional right to pray at the 50-yard line after his team’s games.
All of these rulings were 6-3, along ideological lines. Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, wrote: “I’m hard-pressed to think of a more momentous term in the Supreme Court’s history. Ever. Maybe there have been individual decisions that were more important, but the number of significant, paradigm-shifting rulings, and all in the same direction, really has no precedent in my honest opinion.”
Letters from an American on June 30, 2022
Letters from an American, by Heather Cox Richardson, historian and professor of American History at Boston College
Today at noon, Ketanji Brown Jackson was sworn in as the first Black female justice on the Supreme Court.
Before Justice Brown took her oath, the court also signaled the end of the federal government as we know it.
In the past, the Supreme Court has operated on the basis of “stare decisis,” which literally means “to stand by things decided.” The purpose of that principle is to make changes incrementally so the law stays consistent and evenly applied, which promotes social stability. On occasion, the court does break precedent, notably in 1954 with the Brown v. Board of Education of Topeka decision, which overturned the 1896 Plessy v. Ferguson decision that rubber stamped racial segregation. When that sort of a major change happens, both the court and elected officials work hard to explain that they are changing the law to make it more in line with our Constitution, and to move people along with that change.
With the Dobbs v. Jackson Women’s Health Organization decision of last Friday, the court simply tore up 49 years of law and history, ending federal recognition of a constitutional right Americans have enjoyed since 1973.
Today, the court’s decision in West Virginia v. Environmental Protection Agency reversed almost 100 years of jurisprudence by arguing that Congress cannot delegate authority on “major questions” to agencies in the executive branch. At stake were EPA regulations that would push fossil fuel producers toward clean energy in order to combat climate change. The vote was 6 to 3, along ideological lines. That the court agreed to hear the case despite the fact that the rules being challenged had been abandoned suggested they were determined to make a point.
That point was to hamstring federal regulation of business. The argument at the heart of this decision is called the “nondelegation doctrine,” which says that Congress, which constitutes the legislative branch of the government, cannot delegate legislative authority to the executive branch. Most of the regulatory bodies in our government are housed in the executive branch. So the nondelegation doctrine would hamstring the modern regulatory state.
To avoid this extreme conclusion, the majority on the court embraced the “major questions” doctrine, which Chief Justice Roberts used today for the first time in a majority opinion.
That doctrine says that Congress must not delegate “major” issues to an agency, saying that such major issues must be explicitly authorized by Congress. But the abuse of the Senate filibuster by Republican senators means that no such laws stand a hope of passing. So the Supreme Court has essentially stopped the federal government from responding as effectively as it must to climate change. And that will have international repercussions: the inability of the U.S. government to address the crisis means that other countries will likely fall behind as well. The decision will likely apply not just to the EPA, but to a whole host of business regulations.
As recently as 2001, the Supreme Court unanimously rejected the nondelegation argument in a decision written by Justice Antonin Scalia, who said the court must trust Congress to take care of its own power. But now it has become law.
In the dissent, written by Justice Elena Kagan, Justices Sonia Sotomayor, Stephen Breyer, and Kagan argued that Congress had, in fact, properly given authority to the EPA to act, recognizing that agencies need to be able to respond appropriately to new and big problems. “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.” She noted that “[t]he Clean Air Act was major legislation, designed to deal with a major public policy issue.” “This is not the Attorney General regulating medical care, or even the CDC regulating landlord-tenant relations. It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time. She concluded: “The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy.I cannot think of many things more frightening.”
Kagan’s dissent noted the hypocrisy of the Republican justices claiming to be originalists when they are, in fact, inventing new doctrines to achieve the ends they wish. “The current Court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”
Senate minority leader Mitch McConnell (R-KY) applauded the ruling, saying it limited the power of “unelected, unaccountable bureaucrats.”
The court also said today that it will consider making even greater changes to our country. It will hear Moore v. Harper, a case about whether state legislatures alone have the power to set election rules even if their laws violate state constitutions.
The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislatures doctrine.” This is a new idea, based on the clause in the U.S. Constitution providing that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Those adhering to the independent state legislature theory ignore the second part of that provision.
Those advancing the independent state legislature theory also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now, a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering. This interpretation of the Constitution is radical and new. It caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona.
This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.
That doctrine would also give to state legislatures the power to control who can vote, and how and where they can do so. It would strip power from elections commissions and secretaries of state, and it would take from state courts the power to challenge gerrymandering or voter suppression. Republicans currently control 30 state legislatures, in large part thanks to the gerrymandering and voter suppression in place in a number of those states.
Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that this doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
And yet in March, when the Supreme Court let the state supreme court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.
In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now poised to take control of our federal government permanently.
Almost exactly 35 years ago, when President Ronald Reagan nominated originalist Robert Bork for the Supreme Court, Senator Edward Kennedy (D-MA) recognized his legal theory for what it was: an unraveling of the modern United States.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
“America is a better and freer nation than Robert Bork thinks,” Kennedy said.
And yet, here we are.
We Have Made It Through the Worst
Today’s Edition Newsletter by Robert B. Hubbell
On the last day of the Court’s 2022 term, Ketanji Brown Jackson took the oath to serve as an Associate Justice of the Supreme Court—a historic development that speaks volumes about how far America has come in the last 150 years. Her membership on the Court is a cause for celebration. Let’s hope that her tenure is long and consequential. But until Democrats expand the Court, her role will be limited to dissenting to the overreach of the Court’s reactionary majority. That role might prove important if and when the Court is expanded to include jurists who view fealty to the Constitution as their first and only duty.
On the last day of the Court’s 2022 term, the reactionary majority issued another opinion that overturned long-standing precedent in order to advance the partisan political agenda of the extremist wing of the Republican Party. Once again, the reactionary majority resorted to legal reasoning that is “so bad it is not even wrong.”
In eviscerating the regulatory authority of the EPA to control emissions from coal-fired power plants, the Court assumed the role of a “super-legislature” with the power to overrule any federal regulation that five justices disagree with. In doing so, the Court has unilaterally shifted the “balance of power” carefully crafted by the Framers in the Constitution. And to make matters worse, the effect of the holding will be to dramatically increase carbon dioxide emissions—a greenhouse gas and significant contributor to the climate crisis.
As usual, Ian Millhiser in Vox has done an outstanding job of analyzing the Court’s opinion in West Virginia v. EPA. See Ian Millhiser in Vox, The Supreme Court’s big EPA case is a massive power grab by the justices. As noted by Millhiser, the Court went way out of its way to engage in this “power grab.” The regulation at issue “never took effect [and] that the Biden administration has no intention of reinstating.” Because there was no active “case or controversy” to be resolved, the Court effectively issued an “advisory opinion” (as noted by Justice Kagan in her dissent).
But, having decided to issue a ruling where there was no case or controversy, the reactionary majority applied a judicially created doctrine of recent vintage not mentioned in the Constitution—the so-called “major questions doctrine.” Under the doctrine, the Supreme Court effectively dictates to Congress the specificity with which it must draft legislation in order to grant regulatory authority to agencies.
As noted by Millhiser, “This doctrine comes from nowhere.” It is contrary to the sweeping grants of authority to agencies by the first sessions of Congress, which gave agencies authority over “Indian affairs” and “banking.’ But what was good enough for the Framers and the Founding Fathers does not pass muster with the reactionary majority, which believes that the federal government has become too powerful.
West Virginia v. EPA rewrites the Constitution. As noted by Millhiser, under the “major questions doctrine,” when a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation.
Although the majority opinion engages in more than the customary amount of arm-waving and breast-beating to justify its holding, the majority’s rationale can be distilled to this: “We have a majority, we can do what we want.”
The effect of West Virginia v. EPA is sweeping because its rationale applies to congressional grants to dozens of agencies charged with regulating the largest economy in the world. Now, Congress must assume the work of drafting detailed regulations necessary to provide for a functioning economy that protects the health and safety of consumers and the environment.
West Virginia v. EPA is the latest opinion in the hostile takeover of the Court by the reactionary majority. Mark Joseph Stern, writing in Slate, says that “vast areas of the law, established over the course of decades, [have been] washed away by a court over a few months.” Stern recaps the damage done in the first full term of the Court’s reactionary super-majority by saying “Consider the issues SCOTUS has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The ban on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone.”
And it is clear that the reactionary majority is just getting started. On Thursday, it granted review in a North Carolina challenge to the ability of state courts to review the actions of state legislatures in federal elections. Many commentators are discussing the potential outcome of the case in apocalyptic terms. See, e.g., Talking Points Memo, SCOTUS Could Be Poised To Make Future Coup Attempts Easier.
Although the grant of review in the North Carolina case is concerning, I do not share the dire views of many commentators. Why? Because even if the Supreme Court rules that state courts can no longer review the constitutionality of state legislative actions in federal elections, federal courtscan still review those actions. I will write on this subject in future editions, but at the moment, I don’t believe the predictions of doom are warranted—and I think everyone should take a deep breath and compose themselves.
In a single term, the Court’s reactionary majority has overturned two centuries of precedent touching vital areas of American social order and settled expectations. It has made a mockery of judicial restraint. It is no longer “calling balls and strikes” but is quickly converting the game of baseball into the new sport of Calvinball, in which players make up the rules as they go along. To say the least, these changes are partisan and revolutionary.
We have just endured one of the toughest streaks of setbacks and disappointments in the last fifty years. Although the Supreme Court has not done its worst, it has inflicted serious damage to the fabric of democracy and the equality of women in America. Justice Thomas has signaled the next rights to be targeted by the reactionary majority: Same-sex marriage, same-sex relations, and contraception. These are not hypothetical musings by a single reactionary justice. The Texas Attorney General has indicated his willingness to defend that state’s existing “anti-sodomy” law. Such laws remain on the books in fourteen states.
Having endured this disheartening turn of events, our attention now turns to the solution—the 2022 midterms. An election cycle that many Democrats feared now appears to be the first step in our campaign to reclaim democracy and wrest control of the Court from reactionary forces. That prospect should encourage and excite us because we control our destinies at the ballot box—not six unelected justices doing the bidding of the dark money PACs who lobbied for the confirmations.
If you need a few more days to recover from the shock of the Court’s rulings, the Fourth of July weekend is a good opportunity to do so. But we must rally immediately thereafter if we have any hope of controlling Congress for the next two years—a period during which we can dilute the partisan power of the reactionary majority. So, rest, recharge, and find your voice over the weekend. You’re going to need it as never before.
Abortion Rights Teetering in Virginia?
In the wake of the Supreme Court ruling, Virginia’s anti-abortion advocates are gearing up to restrict abortion rights in our state. Here are some news stories to follow.
Congressman calls for abortion ban in Virginia: ‘Republicans should not be negotiating’
Anti-abortion supporters rallied at the Virginia State Capitol Saturday afternoon to call on state lawmakers to limit access to abortion in the Commonwealth. More than 100 people turned out for the rally organized by Virginia’s 5th District Congressman Bob Good in a push for a complete ban on abortions in Virginia. Additionally, Good and supporters criticized Republicans looking to compromise on the issue as it is now up to states to decide after the Supreme Court overturned Roe v. Wade.
GOP looks for ways to curb abortions even without a ban
By Mel Leonor, Richmond Times-Dispatch
Gov. Glenn Youngkin’s proposal to ban women from obtaining legal abortions in Virginia after 15 weeks of pregnancy isn’t likely to get past Democrats in control of the Senate. But Republicans are seeking ways to advance their agenda on abortions outside of outright bans. Del. Dave LaRock, R-Loudoun, for example, is urging Youngkin to consider conditioning some funding for state-funded universities like Virginia Commonwealth University and the University of Virginia on those institutions halting the procedure at their medical facilities.
Virginia Gov. Glenn Youngkin pushes 15-week abortion ban after Supreme Court decision
Virginia Gov. Glenn Youngkin reiterated Sunday that he is in favor of a state ban on abortion after 15 weeks of pregnancy, continuing to call on legislators to enact new restrictions on the procedure after the Supreme Court’s decision to overturn Roe v. Wade. “The Supreme Court’s decision, I agree with — that this is a decision for states to make by elected officials, by the citizens of Virginia,” Youngkin said on “Face the Nation.” “And that’s why, right out of the box, I called for a 15-week pain threshold bill to be formed and crafted by a bipartisan group of legislators.”
The Constitution Isn’t Working
The Constitution Isn’t working. and the Supreme Court can’t fix it by itself.
Excerpt from theatlantic.com
On the last day of the Supreme Court’s most recent term, the Court released two cases that highlight a challenge to American democracy—a challenge that is the direct result of one of the Founders’ more consequential miscalculations. They granted Congress more power than any other branch of government, and they mistakenly thought Congress would possess a sense of institutional responsibility and authority. Instead it is largely a partisan body, drained of any sense of independent civic duty, and American democracy suffers as a result.
The two cases seem unrelated at first glance. One is West Virginia v. EPA, in which the Supreme Court struck down the Environmental Protection Agency’s Obama-era clean-power rule. The Court relied on the so-called major-questions doctrine, a relatively new term for the legal idea that if Congress intends to delegate significant power to regulatory agencies to fashion new rules and regulations, it has to do so explicitly. The second case is Biden v. Texas. The Court upheld the Biden administration’s decision to reverse the Trump administration’s “remain in Mexico” policy, which required a small number of non-Mexican nationals who were detained at the border to wait in Mexico during their removal proceedings.
What do these cases have in common? They both arose from serious and problematic congressional inaction. Use the link in the first paragraph to read on.
The Ninth Amendment
Today’s Edition Newsletter by Robert B. Hubbell
The Ninth Amendment to the Constitution:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Justice Alito writing in Dobbs v. Jackson Women’s Health:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by a constitutional provision.
Griswold v. Connecticut, 381 US 479 (1965) (recognizing the right to contraception based on the right of privacy). Justice Goldberg, concurring, with Justice Brennan and Chief Justice Warren, joining:
To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundmanetal right is not protected… because it is not mentioned… in the Constitution would violate the Ninth Amendment.
The number of times Alito’s opinion in Dobbs refers to the rule of judicial construction set forth in the Ninth Amendment: Zero.
The Framers of the Constitution gave future generations a guide for construing the Constitution. Justice Alito did not give the Framers the courtesy of mentioning the rule of construction they bequeathed to us. Instead, he created his own rule of construction that freezes rights recognized in the Constitution to an era when women could not vote and Blacks were enslaved.
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