Uncategorized · July 8, 2021 1

Unpacking this Supreme Court Session: The Good, The Bad, The Ugly

Carole Levine    July 7, 2021

As an avowed “court junkie” this has been a terrible, horrible, no good, very bad (with a few exceptions) Supreme Court session.  While there have been some “wins” in cases that were important, other than the upholding the Affordable Care Act, the impact of the wins on the lives of most people and the upholding of democratic principles is limited.  The NCAA case, allowing benefits for college athletes is important, but for a limited number of students.  And even the “cheerleader” case that extended student speech protections to social media, still left the door open for lots of regulations and many questions to follow.  Even in the good news, questions remain and with the bad and the ugly, the issues raised by the Court’s decisions leave much on the doorstep of a Congress that cannot even agree to set up an inquiry into an insurrection of their own workplace, our Capitol, while they were present and seemingly endangered. If Congress is to be the remedy to some of these decisions, we may have a very long wait for change.

The Supreme Court heard 54 cases this session.  This is a small number compared to years past, although they heard 53 last year.  Perhaps this is a trend. I will not cover all of the cases from this session, but I will touch on some of the key ones that may be with us for quite a while.  The “groupings” are mine, based on the benefit of the case to people and to our democratic system which I fear is in great danger from both the politics and laws of state and federal legislatures as well as the rulings coming from the courts. Here’s my take on ten of the 54!



Healthcare wins!  The Court upheld the Affordable Care Act (for the 3rd time) by a 7-2 decision.  They basically never got into the guts of the case, but rather determined that the Republican challengers that brought the case (California v. Texas) had no standing to bring it (they were not being harmed), therefore they could not sue. Justices Alito and Gorsuch were the lone dissenters. This was a fairly simple (and needed) win.  It would not have been prudent, during a pandemic, to take health care away from millions of people. To be able to use the “no standing” argument was a simple way to settle this case and make the Court look good without actually affirming the Affordable Care Act’s Constitutionality.


Antitrust Laws: (I like to call this the Basketball Case!): In the case of NCAA v. Alston, the Court ruled that National Collegiate Athletic Association’s limits on compensating athletes violates US antitrust laws.  The ruling said that schools could offer athletes better benefits tied to education, such as free graduate school, travel, internships, and academic-incentive payments. This was a 9-0 finding by the court.  What this means is that young athletes who bring big bucks to their colleges and universities can earn some academic-related compensation for their “work” in their athletic programs. While this will not impact great numbers of young people, it will help some athletes who need more support for what their athletic skills bring to their college campus. Clearly, the NCAA was not happy, but a lot of college athletes were.


Student Speech (The Foul-Mouthed Cheerleader Case): In a First Amendment, free speech case (Mahanoy Area School District v. B.L.) that received a great deal of press, the Court ruled 8 -1 that protection of student speech extended to social media.  It said that a Pennsylvania school district went too far in punishing a high-school cheerleader who used vulgarity on Snapchat when she did not make the varsity team. While this case was limited in its scope in terms of free speech and it does not address all of the issues associated with social media and schools, it was hailed as a triumph for free speech. What was clear in the Court’s finding in this case is that this is a pro-free speech Supreme Court. The only Justice to dissent was Clarence Thomas who believes that students have no First Amendment rights!


Civil Litigation and Law Enforcement Misconduct: In Tanzin v. Tanvir the Court in an 8-0 ruling (Barrett did not participate) supported a group of Muslim men seeking monetary damages from federal agents who placed them on the no-fly list in retaliation for their refusal to become informants against their religious communities. This case got little attention, but the outcome and its unanimous decision is very important.  This unanimous ruling means that these plaintiffs will be able to seek monetary damages against the FBI agents who violated their religious rights under the Religious Freedom Restoration Act (RFRA).  But (and it is a big “but”), it is possible that these agents may not have to pay. As law enforcement personnel, they have “qualified immunity,” that shields government officials performing their official functions from liability for civil damages. So…  It’s a win in some ways and as Ian Millhiser wrote in Vox, “The good news is that FBI agents and other law enforcement officers are likely to think twice before committing violations similar to the ones alleged by the Tanzin plaintiffs.”




Criminal Law #1: (No Get Out of Jail Free Cards):  In this case, Edwards v. Vannoy, a 6-3, conservatives v. liberals decision, the justices ruled that when there are changes and new rules for criminal procedures that benefit defendants, those rules do not apply retroactively to people whose convictions have already been determined.  In other words, if you are already in prison, serving a sentence, new rules will not help you get that sentence reduced or changed. It’s just too late!  Somehow, this just does not seem fair and that’s what the liberal dissent said.  Unfortunately for those in jail, they were in the minority.


Criminal Law #2: (Too Bad If You’re Just a Kid!): One more 6-3, conservatives v. liberals opinion that looked at sentencing juveniles to life in prison without the possibility of parole. In Jones v. Mississippi, the Court found that judges do not have to find these young people permanently incorrigible (in other words, beyond redemption), even at younger than age 18 before they sentence them to never being able to seek parole. Jones, who is now an adult in his 30’s and who killed his abusive grandfather when he was 15, has educated himself and sought a way to now redeem himself in the world outside of prison. The Supreme Court said no. This decision may make it easier for states to sentence juvenile offenders to life without the possibility of parole with no consideration of rehabilitation.


Church and State: (This goes way beyond LGBTQ Rights!): We all waited with bated breath for the decision in Fulton v. Philadelphia, most of us expecting a positive outcome.  This was the case of the city of Philadelphia denying funding for adoption services to a Catholic social service agency because they would not serve LGBTQ and unmarried couples based on the agency’s religious beliefs. And then…  A unanimous 9-0 decision!  But not in favor of diversity and LGBTQ rights, but rather, the narrow ruling was focused on the fact that the policies of the city of Philadelphia allowed for exceptions, and as long as that was in place, the Catholic social service agency was entitled to a city contract for adoption services and same-sex and unmarried couples could be served by other agencies. While the Court tried to keep this ruling narrow (as it did in the Masterpiece Cake ruling), it is clear that there is wiggle room for this to grow and for religious discrimination (which is greatly protected by the six conservative justices on this court) to become a much larger issue in the future.  Watch for this.


Labor: (Property Rights are just the beginning!): Cedar Point Nursery v. Hassid was closely watched for a number of reasons.  If you were a union organizer, it was going to impact how you can recruit.  If you are a regulator of any sort from a city or county or state, it could impact your access to check on whether or not a site is meeting regulations and standards.  The crux of the case was a California regulation that gave union organizers the right to visit farmworkers on agricultural fields for a limited amount of time and a limited number of days.  The Court ruled 6-3 (conservatives to liberals) that the 1975 California measure that allowed this access violated the growers’ private property rights.  Not only is this another blow for unions and their organizing efforts, but it means that any business owner can bar entry of any inspector on the same basis.  Think about meat packing plants, or the OSHA regulated industries where federal regulations and federal regulators oversee equipment, workers’ health care, as well as other health and safety regulations.  What if the owners said “no” to inspectors checking their sites? This ruling may have opened Pandora’s box around who can and cannot come onto a property to inspect it.


Donor Disclosure: (Dark Money remains in the dark!): The case of Americans for Prosperity v. Bonta was a 6-3 decision with the six conservatives v. the three liberal justices. In this case the Court ruled that California’s requirement that tax-exempt charities file forms with state regulators disclosing their major donors went too far and infringed on the donors’ First Amendment rights.  This decision came as the second round to the Citizens United decision in 2010 that lifted limits on spending on elections, especially by corporations and, at the same time, shielded them from disclosing just who their donors were.  Now, with this decision in Americans for Prosperity v. Bonta, Dark Money donors (those undisclosed donations) have free reign. If you had any desire to know how wealthy donors influence American politics (on either side of the isle – dark money is an equal opportunity resource), your chances of finding out are now quite slim.


Voting Rights: (The Court Sides with Voter Suppression!): On July 1, 2021, the final day of this Court’s session, the Court released its findings in Brnovich v. DNC, a case that many hoped would give voting rights a push forward.  Given all the support from the federal courts for the validity of the 2020 election, there was some logic to this.  Those hopes were dashed with the 6-3 (conservative-liberal) holding on this case from Arizona.  The Court held that it was legal for Arizona to enforce rules that keep third parties from collecting mail-in-ballots and that they could also disallow votes that were mistakenly cast in the wrong precinct.  Both of these rulings have disproportionate impact on minority and indigenous populations in Arizona, an issue that the conservative Justices argue was not so. Writing for the majority in this case, Justice Alito takes a look at the state of Arizona as a whole, rather than seeing how certain areas (such as those predominantly inhabited by indigenous populations) would be impacted by these laws.  When looked at from his perspective, one might justify such a law and ignore the burden and discriminatory impact on minority populations, which is just how this finding ignores section 2 of the 1965 Voting Rights Act.  Justice Kagan did not hold back in her dissent in this case, saying that this ruling decimates the 1965 Voting Rights Act.  Justice Kagan states, “Never has a statute done more to advance the nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this court has treated no statute worse.”  Perhaps, this Supreme Court saved its worst ruling for last!


What’s Ahead?  Based on my groupings…  3 “good,” 2 “bad,” and 4 “ugly,” this was not a good showing for this Court junkie.  Clearly this is a conservative court that is just beginning to show its stripes.  It’s elder statesmen (Justices Breyer, Thomas and Alito) will not be there forever, but we can count on the rest of the six to be with us for quite a while.  That means that the three Trump appointees – Gorsuch, Kavanaugh and Barrett – can be expected to bring us right-leaning decisions for decades.  Kagan and Sotomayor will be there to counter, but this will be a conservative court for the long haul.  And the areas I would watch for with this court include religious liberty (which they give the highest priority in my opinion), limiting federal regulations (you can put abortion rights and gun rights in here if you like), and issues like affirmative action.  This Court’s decision on Arizona’s voter suppression laws has opened the gates for states to do more and made it more difficult to litigate against these state laws.  We have much work ahead, and it starts with educating more people about the importance of our court systems.