Uncategorized · July 4, 2023 0

It Was Not the Best of Times…

Carole Levine                       July 1, 2023


It is hard for me to decide if the Supreme Court ended its session this term with a bang or a whimper… perhaps it was both. But whatever it was, it was not good. Clearly, its final two decisions ended the session on a low note for those of us who consider ourselves liberals.  Chief Justice Roberts actually  acknowledged that angst and anger and, in his eyes, its inappropriateness of the critiques the Conservative bloc on the Court was receiving saying in his final opinion: “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”  He stressed that these decisions just used “the traditional tools of judicial decision making” and although reasonable minds may disagree “[w]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

I beg to differ, Chief Justice Roberts.

The bulk of the decisions made by the Supreme Court, as well as many of the actions of its Justices this term have been harmful to the Court and to our nation.  And I find Justice Roberts’ use of a written opinion that he knew would be unpopular with many to chastise those of us who will disagree with the Court to be distasteful and offensive. If he truly believes the decision falls within the “proper role of the judiciary” then there should be no reason to offer such a defense. In doing this, Roberts acknowledges a Court that, while protected by its lifetime appointments and lack of ethical standards, clearly is on shaky ground with the American public.

Although there have been some decisions from this Court that count as “wins” for voting rights; for indigenous people; and perhaps for religious rights,  the blockbuster cases have, for the most part lined up in the conservative camp with 6 to 3 decisions, along strict conservative/liberal lines.  The six Justices appointed by Republican Presidents aligning against the three appointed by Democrats.

Following last session’s rollback of reproductive rights with the Dobbs decision that did away with Roe v. Wade and individuals’ reproductive freedom, we are seeing a pattern of the Court rolling back rights as opposed to protecting them.  Freedoms that were fought for during the Civil War and then through the Civil Rights movement now seem at risk. As much as it might pain the Chief Justice to hear it said, there is partisanship associated with this Court. This is more prevalent than in the past and it is not surprising that public opinion and trust in the Supreme Court is at one of the lowest points in history.

Given this, it might seem to be a time when those of us who work on the courts, at the local, state and federal level, might be pulling up stakes and looking for new areas where our efforts might be more effective and have more impact.  But I am not ready to throw in the towel yet!  The victories we have had this session are not small.  The actions and decisions of the Court itself have raised public awareness around the courts and their impact in ways that are shining a spotlight on that third branch of our government. There is no way for the Supreme Court or any other court to operate “under the radar” anymore.  People are watching and expecting that justices and judges will act within ethical guidelines. The pressure is coming from many directions: from Congress, from organizations, from legal societies, from the general public, and more. Much as they might like, our judiciary cannot retreat into a special bubble that protects them from public scrutiny.  Judges, including Supreme Court Justices, are accountable to the people they serve.

Will this change decisions made by this Supreme Court? I do not know. It might give them pause before taking on certain cases that have been decided in the lower federal courts. We know they have already taken on at least one gun case in the next session, and will, most likely be deciding the medication abortion case as well.  Given the makeup of this Supreme Court, slowing the pace of cases that might turn back the clock on decisions that are considered “settled law” (like gay marriage) would not be a bad thing. We can hope that such cases do not surface anytime soon.

Here’s a quick “scorecard/summary” of some of the key cases that this Supreme Court has decided this term.  While there were some truly unexpected “wins”, the “losses” will be with us for a long time.

  • Student Loan Forgiveness: 6/3 decision (on ideological lines)

Biden v. Nebraska

The Court struck down President Biden’s plan to forgive some or all of federal student loan debt for tens of millions of Americans, saying that federal law does not authorize the US Department of Education to cancel such student loan debt. The Court found that the President had exceeded his authority under the 2003 law, known as the HEROES Act.  Writing for the Court, Chief Justice Roberts applied the “major questions doctrine” to this case which allows the court to ignore the law when they believe that the Executive Branch is trying to answer a “major question” beyond what Congress had authorized – in this case, debt relief. In essence, as Justice Kagan noted in dissent, the Court was making law.  “From the first page to the last, today’s opinion departs from the demands of judicial restraint,” <…> That is why the Court is supposed to stick to its business—to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.” Instead, on Tuesday, the majority chose to override “the combined judgment of the Legislative and Executive Branches, with the consequence of eliminating loan forgiveness for 43 million Americans.”

  • LGBTQ+ Rights: 6/3 decision (on ideological lines)

 303 Creative v. Elenis

 The Court ruled that the First Amendment bars Colorado from “forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”  In other words, Colorado’s (or other states’) public accommodation laws do not apply in cases where they infringe on the designer’s (or other professional’s)  ”speech” because they refuse to offer their services to those, they believe, are asking them to violate their personal, religious beliefs. In this case, the designer should not be forced to design a website for a gay couple because she is of a belief that marriage should only be between a man and a woman.

  • Affirmative Action: 6/3 decision (on ideological lines)

Students for Fair Admission v. Harvard

Students for Fair Admission v. University of North Carolina

 The Court found that Harvard and the University of North Carolina’s admissions policy violated the equal protection clause of the 14th Amendment.  This reverses decades of precedent upheld over many years by narrow Court majorities that included Republican appointees.  It could end the ability of public and private universities to consider race as one of many factors in deciding which qualified applicants to admit.  The opinion left some very narrow loopholes that might indicate the race of an applicant. The Court presents its opinion as “colorblind” and that we live in a nation where segregation is no longer an issue and equity reigns.  In her dissenting opinion, Justice Ketanji Brown Jackson captured the reality of our nation: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces colorblindness for all by legal fiat. But deeming race irrelevant in law does not make it so in life… No one benefits from ignorance.”

  • Religious Accommodation in the Workplace: 9/0 decision

 Groff v. DeJoy

The Court ruled unanimously in favor of an evangelical Christian Postal Worker who refused to work on Sundays for religious reasons.  The Court was responding to the existing “de minimis” or trifling cost that an employer might have to bear to accommodate a religious request of a worker and basically saying that it no longer can be the main factor.  The case greatly expands how far employers must go to accommodate the religious views of their employees. In other words, the cost must be much greater for an employer to say “no.”

  • Voting Rights Act: 5/4 decision

 Merrill v. Milligan

The Supreme Court narrowly ruled against Alabama’s defense of an electoral map drawn by the state’s Republican-dominated legislature. They upheld their 1986 decision that in states where voting is racially polarized, the legislature must create the maximum number of majority or near-majority Black congressional districts, using traditional redistricting criteria. More than 25% of Alabama’s population is Black, but the map being challenged created only 1 of 7 of their congressional districts that provided Black Alabamians being represented by a candidate who looks like them. For this reason, the Court ordered a new map that gave Black voters two districts instead of just one. It should be noted that this decision was not in place for the 2022 election and the previous map was used.

  • Indian Child Welfare Act: 7/2 decision

Haaland v. Brackeen

The Court upheld the Indian Child Welfare Act’s preferences for Native tribes when Indian children are adopted, ruling that the law does not discriminate on the basis of race and does not impermissibly impose a federal mandate on traditionally state-regulated areas of power. The key issue pitted several prospective non-native adoptive parents and the state of Texas against the Indian Child Welfare Act which aims to prevent children from being separated from their extended families and tribes. The issue at stake in this case was giving priority to keeping Native American children with tribal families in adoptive situations.

  • Voting Rights/Independent State Legislature Theory: 6/3 opinion (This time the liberals prevailed!!)

Moore v. Harper

The Court ruled that state constitutions can protect voting rights in federal elections and state courts can enforce those provisions.  This opinion should safeguard the integrity of the 2024 election.  In this case from North Carolina, the attempt was to adopt the so-called independent state legislature theory which would allow state legislatures to put all kinds of elections laws in place that would bypass any review by state courts as well as governor’s vetoes. If kept in place state legislatures would be in total control of elections (state and federal) with no checks or balances and would open the door to state legislatures invalidating the results of Congressional, Senatorial and Presidential elections in their states. If kept in place, the January 6th rioters would have been vindicated.

  • Environment: 5/4 opinion (Justice Kavanaugh joined the 3 liberal justices)

 Sackett v. EPA

 In this case of water rights a couple in Utah was looking to build their dream home and bumped up against wetlands regulations, the Court revoked federal protections over millions of acres of wetlands impacting the Clean Water Act in ways that will devastate sensitive ecosystems, endangered species, flood control and drinking water. The court’s decision will reduce the number of wetlands subject to federal jurisdiction under the Clean Water Act. The court’s decision will also provide property owners with clarity and more flexibility over the use of their property. The Sackett decision provides a very clear standard that substantially restricts the EPA’s ability to regulate certain types of wetlands and streams. Specifically, wetlands that do not have a continuous surface connection with navigable water are not federally jurisdictional.

Following the work of this Supreme Court has been daunting. They seem to be on a path of unraveling as much set law that has upheld hard-fought civil rights, voting rights, human rights, and environmental rights for years. They are also doing this in a protected bubble where their own integrity is questionable and they do not seem to care. Perhaps that is why Chief Justice John Robert’s inclusion of a statement chastising his critics is so offensive.

But I also see this as a call to action. If the Chief Justice sees the need to make such a statement, then perhaps we all should see the need to redouble our efforts to give the Courts (local, state, and federal) a bit more of our time and oversight.  When I look at the list of important decisions that were made this year by the “Supremes” and know that hundreds more were made in the lower federal courts and even more in our state courts… 

So, here are my suggestions for actions that can and should be done:

  1. Vote! Vote in every election and make sure that everyone you know votes too.  Every state is different in how it selects its judiciary but it will always relate in some way to who you elect to state offices.  So, I will say it again… Vote!
  2. Learn about your court systems. Not just the Supreme Court.  Most cases are not decided at the Supreme Court level….  Know the structure of federal and your state court system.  You are more likely to meet a judge at that level than any other elected official!
  3. Talk about the courts. The work of the courts impacts every aspect of your life, from the air you breathe to the health care you receive, to who you can marry, and more.  It’s important stuff to know about.
  4. Consider lobbying for some form of Supreme Court reform… like term limits. (I am not sure expanding the Court is a good thing!)
  5. Find out who is working on Courts issues near you and get involved if you can… or at least, be informed.

It is definitely not time to give up and go home!  So, I guess I will just keep pushing to make sure that people know what’s going on with our courts. Because…  Courts Matter!