Jul.03

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It's Been a Busy Year for the Supreme Court

In the past week, the Supreme Court has handed down decisions on Affirmative Action, religious rights of "artists," and student loan cancellations. We discussed these on Saturday. But it has also handed down many other decisions this term. Either there were no blockbusters like last year's Dobbs decision, or there were so many blockbusters this year that none of them stood out above all the others. Here is a brief summary of the biggest ones. It is hard to group them by subject since almost each one is unique, so they are in chronological order:

• May 11: Prosecution of corruption: Here the Court restricted the ability of federal prosecutors to pursue corruption cases. A former aide to former New York governor Andrew Cuomo, Joseph Percoco, was convicted of requesting and accepting a $315,000 bribe from a construction company. The case hinged on the fact that at the time he took the bribe, Percoco was no longer in government but was working for Cuomo's election campaign. Thus, in theory, he had no official ability to help the company and thus there was no official quid pro quo. The fact that he could still whisper something in Cuomo's ear wasn't enough to uphold the conviction. The vote was 9-0.
  
  
• May 18: Social media: The families of people killed by terrorists sued Google because the site allowed militant groups to operate on YouTube and in some cases their algorithms even recommended this content. The Court ruled that Sec. 230 of the Communications Decency Act shields companies that accept user-generated content from having to vet the content. In other words, the Act says that a company like Google is more like the Postal Service (which doesn't vet letters) than The New York Times (which does vet letters) and the Court upheld this interpretation by a 9-0 vote.
  
  
• May 25: Protecting wetlands: Federal law protects wetlands but four presidential administrations have been involved in lawsuits about what a protected wetland is. In this case, Samuel Alito wrote a 5-4 decision limiting the scope of the Clean Water Act to wetlands that have a continuous connection to bodies of water. With this definition, a marsh connected to a lake is a protected wetland but a freestanding marsh is not. Brett Kavanaugh joined the three liberals in the minority.
  
  
• June 1: Unions: In this case, this Court made it easier for employers to sue unions for damages. This was a blow to organized labor. Truck drivers working for a cement company mixed cement immediately before going on strike. The cement hardened, leaving it useless, and the company sued the union for the value of the cement they couldn't sell. Washington State Supreme Court dismissed the case on the grounds that it should be heard by the National Labor Relations Board. The company argued that their case belonged in state court. The decision to send the case back to state court was 8-1, with Ketanji Brown Jackson dissenting.
  
  
• June 8: Racial gerrymanders: In a surprising decision on racial gerrymandering, the Court decided that the Alabama legislature violated the Voting Rights Act by not creating two majority-Black districts, which would have made sense geographically. The legislature was ordered to draw a new map with two majority-Black districts. John Roberts and Brett Kavanaugh joined the three liberals on this 5-4 decision.
  
  
• June 15: Native American adoptions: Federal standards state that when Native American children are put up for adoption, Native American families get preference over everyone else. The case was brought by the state of Texas and three non-Native American families. The Court ruled 7-2 that none of them had standing to sue. This is interesting because sometimes the Court is apparently picky about standing (as in this case), but in the case of the Colorado website developer, Lorie Smith was granted standing even though she wasn't even in the business of developing wedding websites at the time of the suit and hadn't actually turned away any gay couples who wanted her to develop one for them. It is hard to see how Texas was injured by the adoption priority rule but it is equally hard to see how Smith was injured because some day she might enter a new business and some day a gay couple might want to hire her. So what are the rules about standing to sue? There are no rules. The Court just makes them up to suit its current needs.
  
  
• June 23: Immigration enforcement: In an 8-1 decision authored by Brett Kavanaugh, the Court upheld the federal government's right to choose whom to arrest and prosecute for violations of immigration law. The courts have long accepted the idea that prosecutors cannot prosecute every crime due to lack of resources and generally accept prosecutors' decisions about which ones to prosecute. Texas and Louisiana had different ideas than the feds about prosecuting people for violating immigration law, but the Court ruled that it is the feds' call, not the states'. Samuel Alito was the lone dissenter.
  
  
• June 23: Restriction of free speech: Federal law makes it a crime to encourage illegal immigration. This means that federal law bans certain kinds of speech. Is the law in question a violation of the First Amendment? That was the issue here. In a 7-2 ruling written by Amy Coney Barrett, the Court ruled that the law was acceptable because speech that encourages committing a crime is not protected. Ketanji Brown Jackson and Sonia Sotomayor dissented.
  
  
• June 27: Power of the state legislatures: The Constitution has a clause that says: "the times, places and manner" of federal elections "shall be prescribed in each state by the legislature thereof." The North Carolina legislature interpreted this to mean that it had sole power over elections, and the governor and courts had nothing to say about them. The Supreme Court didn't buy this and rejected the so-called "independent state legislature theory" 6-3, with John Roberts, Brett Kavanaugh, and Amy Coney Barrett joining the three liberals. If the Court had accepted the theory, it would be saying that it itself has no authority over election disputes. That was several bridges too far for three of the conservatives.
  
  
• June 27: Stalking: A Colorado man sent a barrage of thousands of unwanted, threatening messages to a female musician. She felt he was (digitally) stalking her. The man said he was just exercising his right to free speech. A lower court disagreed with him but the Supreme Court vacated that decision. Elena Kagan wrote for the 7-2 majority that the First Amendment "requires proof that the defendant had some subjective understanding of the threatening nature of his statements" and she didn't think that was proven. Amy Coney Barrett and Clarence Thomas dissented.
  
  
• June 29: Affirmative Action: Just as the Court chucked out the 1973 Roe decision last year, it chucked out the 1978 Bakke decision this year. In a 6-3 ruling along ideological lines, the Court ruled that universities may not use race (on its own) as a factor in determining admission decisions, even though in Bakke an earlier version of the Court said that was allowed. Stare decisis? Guess that's just some random phrase in a long-dead language.
  
  
• June 29: Religion in the workplace: In the past, the Supreme Court has ruled that if an employee wants some accommodation on account of his or her religion, the employer should grant it if can be easily done without affecting the business. Clearly a store with two employees is hit harder if neither one wants to work on Sunday than a business with thousands of employees and complex schedules. In this case, an evangelical Christian letter carrier, Gerald Groff, who refused to show up for work on Sundays, was disciplined for his absences. The case is complicated because the USPS has a contract with Amazon to deliver packages in rural areas, even on Sundays. Normally, the USPS tried to have someone else deliver the packages on Sundays in Groff's territory, but sometimes there was no one available but Groff, and the USPS didn't want to violate its contract with Amazon, so it ordered Groff to occasionally work on a Sunday. A lower court rejected Groff's claim and said that his refusal to work put a substantial burden on the USPS when it couldn't find anyone else to deliver packages on Sundays in his rural area. The Supreme Court vacated that decision 9-0 and said the USPS didn't do enough to try to accommodate Groff. It sent the case back to the lower courts to be reheard.
  
  
• June 30: Religion vs. discrimination: In this case, a Christian web designer wanted a ruling in advance that would say that if she ever got into the business of designing wedding websites and a gay couple ever asked her to design one, she could refuse. It was decided 6-3 along ideological lines. It is going to be a case study in every law school in the country for decades about the Supreme Court run amok. Not only was the designer not injured in any way, but the courts are not supposed to issue rulings on hypothetical cases, only real ones where someone can prove they were actually injured in some way and they want redress.
  
  
• June 30: Student loan cancellations: The HEROES Act gives the secretary of education the power to waive or modify student loans. Secretary of Education Miguel Cardona waived up to $20,000 in loans for some borrowers. John Roberts wrote: "The secretary's plan has 'modified' the cited provisions only in the same sense that the French Revolution 'modified' the status of the French nobility—it has abolished them and supplanted them with a new regime entirely." But the law didn't actually limit the secretary's authority in any way, and that was intentional. Congress granted the secretary the power to use his discretion. Roberts and the five other conservatives didn't like Congress doing this, so they just said: "No."
  

Although there were some exceptions, the conservative majority is continuing to flex its muscles, even when that entails overturning long-standing precedent and granting people who have no conceivable basis for bringing a case standing so the Supremes can rule the way they want to on hypothetical cases. Joe Biden said: "This is not a normal court." Confidence in the Court is at a historic low and justices taking expensive favors from billionaires and not reporting them doesn't help much. But the prevailing view on the Court appears to be: "We can do whatever we want. Who's going to stop us?" (V)